October 2, 2019
A U.S. jury has found Katy Perry, her co-writers and the record company that produced “Dark Horse” liable for copyright infringement, awarding $2.8M USD to Christian musician, Flame, for infringement of its song “Joyful Noise”.
To prove copyright infringement in the U.S., a plaintiff often relies on circumstantial evidence to show that a defendant had access to the original work, and then demonstrates that the two works are substantially similar. While Perry and the other writers of “Dark Horse” maintained that they had never heard “Joyful Noise”, and therefore could not have copied it, Flame pointed to the song’s “wide disseminat[ion]” across 6 YouTube videos which had been cumulatively viewed 3.88 million times. Both parties retained experts to provide evidence about the similarities between the “descending minor mode 8 figure ostinato” riff that appeared in both songs.
The Court ruled in favour of Flame, concluding that the dissemination of “Joyful Noise” on YouTube was sufficient to prove that Perry and her co-writers had access to it and that the two songs were “substantially similar” to one another.
The jury’s decision has caused some consternation in the intellectual property community. Some commentators have pointed out that the “access” requirement is meaningless if the plaintiff need only demonstrate a few hundred thousand YouTube views across multiple videos, especially given that 1.8 billion users visit YouTube each month. Further, mere “similarities” between songs are insufficient to prove copyright infringement, and the riff at issue can be found not only in “Dark Horse” and “Joyful Noise”, but also in Bach’s Violin Sonata in F Minor and Oscar Hammerstein’s “Ol Man River”. For those reasons, some believe that the “Dark Horse” case has lowered the threshold for copyright infringement by protecting “unoriginal musical elements that should be freely available for anyone to use”.
Authors: Sarah Stothart and Duncan Lurie