In another extremely controversial copyright verdict, a federal jury, on July 29, 2019, concluded that Dr. Luke/Katy Perry’s “Dark Horse” infringed the copyright of Flame’s “Joyful Noise.”
Partner Ed McPherson, who specializes in copyright infringement matters, and has written Amicus briefs on behalf of hundreds of songwriters and musicians in both the “Blurred Lines” case and the Led Zeppelin case, was interviewed by Variety to discuss the case, and in particular how various indemnity obligations work among the defendant songwriters, producers, artists, and record labels.
“If the producer brings in their own beats or music that an artist then adds lyrics or a melody to, typically the producer deals indemnify the artist for any breach of warranty, and the warranty would be that all the music is original.”
Although McPherson is not familiar with Dr. Luke’s production deal or any of the publishing deals surrounding “Dark Horse,” he noted that Perry may also be shielded from providing a portion of publishing.
“The artist has indemnity obligations to the publisher and the record label, so in theory the producer would indemnify all those people, but sometimes it’s a fight . . . but the jury came back that all of the people and companies involved are liable, and if [Dr. Luke] has an indemnity obligation, he would have to cover them.”
However, in McPherson’s own experience, the indemnity clause may not be sufficient if the producer is unable to cover the damages. “I’ve been involved in situations where the producer brought in a sample that wasn’t declared or something like that, and the artist ended up having to pay for it.” Whatever the indemnity circumstances are for Perry, McPherson told Variety that she “was concerned enough to have her own litigator, Vince Chieffo, involved in the case, rather than completely relying on Luke’s attorney.”
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