The 9th U.S. Circuit Court of Appeals said that it was just one case. They said that it would not affect other cases. Many said that it was an outlier. Well, they were wrong. The “Blurred Lines case” is alive and well in its latest form — the case with the unfortunate moniker “the Katy Perry case,” even though there were nine other defendants in the case. The opening floodgates that I previously foretold — check! The stifling of musical artists’ creativity — check! (Copyright) juries gone wild — check! We have it all, and there is no sign that it is going to let up anytime soon.
On July 29, an eight-member jury in federal court in downtown Los Angeles unanimously determined that Katy Perry, along with three producers, a number of songwriters, a record label, and a publisher were all liable for infringing the copyright of a 2008 song called “Joyful Noise,” by Christian rap artist Marcus Gray p/k/a Flame. Yet, similar to the Blurred Lines case, there are no similarities in melodies in the two works; in fact, “Joyful Noise” does not really have a melody. There are no similar chord progressions, no similar bass lines, no similar drum grooves, and no similar lyrics.
What the two songs do share is an “ostinato” — essentially background texture for a verse, to highlight the melody. In “Joyful Noise,” the ostinato is a descending phrase (in a minor scale) in staccato quarter notes. This descending phrase has been referred to as nothing more than “building blocks,” which refers to a basic, unprotected (by copyright) structure upon which a lot of other music can be, and is, created.
Did this type of descending quarter note scale originate in 2008 with Flame? Certainly not. Some music experts have suggested that such a scale predated Flame’s work by almost 400 years with the “Adagio from Bach’s Violin Sonata in F Minor.” Other works that share such phrases include “Moments in Love,” by Artful Noise (sampled 120 times), the classic “Jolly Old St. Nicholas,” and the spiritual “Go Down Moses.
Yet, despite the efforts of some very fine copyright lawyers, Christine LePera and Vince Chieffo, and arguably the best musicologist in the country, Dr. Lawrence Ferrara, who exposed the “prior art” of the ostinato, and the many reasons for which it is not original or unique enough to be protected by copyright, the jury decided not only that the defendants (somehow) must have been aware of “Joyful Noise,” but also that they copied the ostinato in that song when they wrote “Dark Horse.”
As if the jury’s decision on liability was not enough of a travesty, the damages phase of the trial commenced on July 30 and lasted for approximately two days. The parties stipulated to each defendant’s gross earnings and expenses on “Dark Horse,” and determined the agreed upon net profits from the song. The individual net profits of the defendants ranged from WB Music Corp.’s $130,450.36 to $5,732,938.00 for Capitol Records (which is presumably indemnified by Perry).
The jury next had to assign a percentage of those profits — essentially the value of the Flame 8-quarter note phrase to the success of “Dark Horse.” Flame’s attorney argued that, because the ostinato was present in 45% of “Dark Horse,” Flame should receive 45% of the profits from the song. Fortunately, the jury rejected that egregiously flawed logic. However, the percentage that they came up with was still an astonishing 22.5%.
Let’s analyze that. There were certainly numerous elements of the success of “Dark Horse” that contributed not only to the song’s revenue, but to its critical success, including a Grammy nomination for Perry and Juicy J, and an American Music Award for single of the year.
There was Katy Perry’s (91 awards, including four Guinness World Record Awards; 307 nominations, including 13 Grammy nominations) popularity, her style, talent and vocal performance. There was the Capitol Records marketing machine (which did not mention the ostinato). There was Juicy J’s (Three 6 Mafia, over 5 million albums sold; two platinum albums; Academy Award; American Music Award; Memphis Hall of Fame) popularity, style, talent and vocal performance. There was Dr. Luke’s (four Grammy nominations), Max Martin’s (22 No. 1 hits; Academy Award nomination; five Grammy Awards and 21 nominations); 10 ASCAP Pop Music Awards), and Cirkut’s (one Grammy Award and three nominations) popularity and producing abilities. There was the songwriting talent of Sarah Hudson, along with the other songwriters. There were the lyrics. There was all of the other music in “Dark Horse,” including … ah … the actual melody.
And then, there was the descending phrase of quarter notes in the background of the song that was similar to that of “Joyful Noise.”
The question that I would like to ask this jury, as I ask in every copyright case that we have defended, and that is: if the portion of the allegedly infringed song (in this case, “Joyful Noise”) was so influential, so important, and so crucial to the financial success of the allegedly infringing song (in this case, “Dark Horse”), then why is it that “Dark Horse” earned millions of dollars, and “Joyful Noise” earned next to nothing?
The profits to which a plaintiff is entitled in a copyright case are only those profits that are attributable to the infringement — meaning that, “but for” the allegedly infringed material, the allegedly-infringing song would have earned x percentage less — in this case 22.5% less. I leave this with one question: Is it conceivable that, had “Dark Horse” not contained a descending phrase (in a minor scale) in staccato quarter notes that were similar to that of “Joyful Noise,” it would have earned 22.5%, or $2.78 Million, less. The answer, without a doubt, is no.
As stated by Adam Neely (speaking on behalf of other musicians to Flame’s musicologist, Todd Decker), in Adam’s brilliant YouTube video concerning the case: “The precedent that’s set by it is kindof dangerous. I hope you were paid well cause you kindof sold us all out on this.”