Katy Perry’s “Dark Horse” falls at the final hurdle

On Monday 29 July 2019, a jury unanimously determined that Katy Perry’s song “Dark Horse” infringed the copyright of Marcus Gray’s Christian rap song “Joyful Noise”.  

Mr. Gray and his co-plaintiffs sued in 2014, claiming that “Dark Horse” reproduced the beat and instrumental line of “Joyful Noise” without their authorisation thereby infringing the copyright in the song.  

At trial, Ms. Perry’s lawyers contended that no such copyright existed, arguing that the elements upon which the plaintiffs sought to base their claim did not qualify for copyright protection.  The basis of this argument was lack of originality, namely that the beat and instrumental line in question were commonplace and should be available to everyone: “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone.”

However, the jury was satisfied that the musical patterns in dispute were sufficiently original to qualify for copyright protection.  

The defendants testified that none of them had heard “Joyful Noise” or of Mr. Gray and that they did not listen to Christian music.  However, to succeed with their claim, it was only necessary for the plaintiffs to demonstrate that the defendants could have heard the song.   The defendants therefore also argued against transmission of “Joyful Noise” on the grounds that it was not sufficiently mainstream and well-known for it to have been possible for them to have heard it.  

The jury was not persuaded by the transmission arguments.  Whilst “Joyful Noise” may not have achieved widespread mainstream recognition, the album on which it was released had been nominated for a Grammy and the song itself had nearly 5 million views combined on YouTube and MySpace.   It appears that this was sufficient to convince the jury that the defendants may have come across “Joyful Noise”.  

On that basis, the jury found all of the defendants liable for the infringement, including Ms. Perry and Sarah Hudson who wrote the lyrics of “Dark Horse” and Juicy J who wrote the lyrics of the rap that features in the song.  Damages were awarded in the sum of $2.7m (£2.2m).

This was a US case decided by a jury and therefore, strictly, would have no influence on how an English court might view the matter.  However, it does illustrate the difficulty in assessing what amounts to “substantial taking” for the purposes of copyright infringement. 

Compare “Dark Horse” and “Joyful Noise“. Would you agree with the jury?