In 2018, pop star Katy Perry was sued by Christian rapper Flame (Marcus Gray) who claimed Perry used an eight-note ostinato from his 2008 song “Joyful Noise” in her 2014 song “Dark Horse.” In the trial, the jury found in favor of Gray claiming that the ostinato figure, while having some differences, was original enough to be copyrighted and as a result, Perry and co-writers were required to pay $2.78 million in damages. However, in March of 2020 the Jury’s verdict was overturned in favor of Perry, leading Gray to appeal this decision bring this back to court.
This case has gained large attention from lawyers, musicians, and the general public as it sparks debate as to what constitutes musical infringement. This case will likely set precedents for future cases and help define what elements of music are copyrightable.
My goal is to discover why the jury originally voted in favor the plaintiff in the original trial and why the ruling was overturned. This project will utilize court documents and testimonies as sources, and will also involve musical analysis of the two ostinato figures to determine exactly how similar they are and whether this case should have been brought to court in the first place.
Oh wow, I (embarrassingly) didn't know that much detail about that case… or really any detail at all. I think it's really pertinent t our discussions in this class recently as well as a huge interest to our own 'artistry' and individualism as performers and creators of music.
One thing that might also be interesting is if you did some research into how the amount of $2.78 million was determined. On what basis did the court find there to be damages, or at least that were worth compensation?
Additionally, I'd be interested to hear if there were other legal cases that were similar, or is this THE music infringement case?
Attached to this page is my abstract and final paper on musical copyright infringement procedures. However, I would like to directly address some of the individual delivery points here, though some are covered in the paper already.
1. Some written aspect that articulates the purpose and significance (thesis) of your project.
This paper is an expansion on our classes’ discussion of Intellectual property and ownership. Even when there is no direct evidence of copying someone else’s work, current court precedents allow proof of ownership if the pieces are “substantially similar.” As substantial similarity is a subjective concept at best, questions are prompted such as; what elements of a song are protectable? How do you define two musical elements as “similar”? How many “similar” elements must two works exhibit to qualify them as substantially similar and therefore possibly infringing on each other? Ultimately, these quests led me to ask whether the concept of substantial similarity is an effective way in determining copyright infringement, to which I concluded it was not. This paper looks the general court proceedings for determining copyright infringement, the impact of two historic cases that influenced current precedents, and analyze a how these affect a current legal battle. Ultimately, this paper serves to be an analysis and warning of the issues in current copyright law in application to music, highlighting the need for reexamination of current procedures.
2. Discussion of and reference to scholarly literature (including readings assigned this semester) that explores issues pertinent to your project
This paper primarily uses information from the court opinions of Bright Tunes Music Corp., v. Harrisongs Music, LTD. (420 F. Supp. 177 1976), Gray v. Perry 2:15-cv-05642-CAS (JCx), Skidmore v. Led Zeppelin 16-56057, and Williams v. Gaye, No. 15-56880 (9th Cir. 2018), as well as information from legal textbooks and journals such as David Nimmer’s Nimmer on Copyright, J Fishman’s Music as a Matter of Law, and David Moser and Cheryl Slay’s Music Copyright Law. The court opinions are crucial for understanding how the events in the courtroom turned out, while the legal resources offer a structural understanding of current law and often bring up some of the issues with current proceedings. One article in particular that recognizes the issues of substantial similarity is Robert Helfing’s Substantial Similarity and Junk Science: Reconstructing the Test of Copyright Infringement.” I will admit that this project and its resources have to do more with law than they do with music, but it only after we understand the current legal framework that we can reposition it to better fit the music.
3. Reflection of your learning experience
This project taught me why I don’t want to be a lawyer… Digging through law material made me understand the complicated nature of these cases and gave me respect for lawyers who do this every day. However, doing this kind of research was a great way to contextualize my knowledge and opinions of music in a different field, which I think is something that we as musicians need to do more if we want our craft to stay alive.
4. Thoughts/plans for further research/development of your project
If I were to continue working on this project, I would start by researching other cases since Williams v. Gaye such as the lawsuits against Ed Sheeren and Led Zepplin, as well as any other ongoing trials. I would also take a look at the most recent precedents set, as much of my research is based on precedents that may have changed. I would also spend time looking for other alternatives to current systems or way’s to make current systems more effective.