December 11, 2018
As Above the Law recently reported, the US District Court of California recently ruled that the copyright claim against the writers of Katy Perry’s hit “Dark Horse” will proceed to trial.
Released in the fall of 2013, “Dark Horse” was an instant hit. Upon its release, a group of musicians noted similarities between “Dark Horse” and their own song, “Joyful Noise,” which had been released several years earlier. Consequently, in July of 2014, Marcus Gray, Chike Ojukwu and Emanuel Lambert (“the Gray plaintiffs”) sued the writers of “Dark Horse” (Katy Perry, Henry Walter, Lukasz Gottwald, Karl Sandberg, Sarah Hudson and Jordan Houston) (“the Perry defendants”) for copyright infringement.
The case has been working its way through the court for the past few years. On June 25, 2018, the Perry defendants filed a motion for summary judgment which was subsequently denied. In September 2018, the Perry defendants asked the court to reconsider the summary judgment order and stop the matter from proceeding to trial.
Under American copyright law, it is open to courts to infer that copying occurred if it can be shown that the accused infringer had prior access to the allegedly infringed composition. Though mere speculation as to whether an alleged infringer has accessed an allegedly infringed work is not sufficient, the existence of a reasonable possibility of accessing the work in question can be.
The Perry defendants relied upon the Ninth Circuit’s 2016 holding in Loomis v. Cornish (“Loomis”) to argue that plaintiffs asserting that alleged infringers had access to the work in question were now required to “show both commercial success and distribution through relevant mediums, or saturation in the relevant market.” The Perry defendants argued that the Loomis decision redefined commercial success such that “nationwide saturation” was required and claimed that the 25,000 digital downloads of “Joyful Nation” did not rise to such a level.
In Marcus Gray et al. v. Katy Perry et al., Judge Christina Snyder rejected these arguments, noting that Loomis did not redefine “commercial success” in the manner characterized by the Perry defendants. Instead, Judge Snyder held that the commercial success of a song was only one factor which could be considered in the access analysis and that, moreover, not all copyright plaintiffs are required “to show commercial success in order to demonstrate a triable issue as to access.”
Pointing to the “millions of views of ‘Joyful Noise’ on easily accessible and free websites,” Judge Snyder stated that the court remained persuaded that “a reasonable jury could conclude that there is more than a bare possibility that the defendants had the opportunity to hear the Grammy-nominated ‘Joyful Noise.’” Accordingly, the court denied the Perry defendants’ motion for reconsideration and the matter is set to proceed to trial.