In July, a six-year-old song struck a chord in pop culture for all the wrong reasons. Following a four-year legal battle, a Los Angeles jury declared that Katy Perry’s 2013 track ‘Dark Horse’ had copied Christian rapper Flame’s 2008 track ‘Joyful Noise’ – a decision that has proved to be controversial.
With Perry’s notorious industry status, the ruling generated a strong reaction, with some commentators stating its implications for songwriting are ‘chilling’ as juries with limited musical knowledge will be able to “own basic building blocks of music”, as said by Perry’s defence attorney, Christine Lepera. But do these rulings pose a true threat to the music industry, or do they just reflect its pre-existing problems?
It’s important to consider this case within the context of Perry’s career. For the last decade, Katy Perry has been one of pop’s most high-profile – and successful – stars. As well as having five albums under her belt, Perry has had four concert tours and headlined the Super Bowl XLIX (2015) halftime show. Last year she topped Forbes’ list of the ‘Highest-Paid Women in Music’, and she has the most followers of any musician on Twitter.
Given her time in the public eye, the ‘Dark Horse’ lawsuit is not her first controversy. Perry has faced accusations of appropriating or even mocking the cultures of different oppressed groups. At the 2013 American Music Awards, Asian-American groups criticised her choice to perform in a geisha ‘costume’, though artists like Lady Gaga defended her.
Further controversy followed the video for ‘This Is How We Do’ (2014), which featured Perry wearing cornrows, posing with a watermelon, and adopting a ‘blackcent’.
With her single, ‘I Kissed a Girl’, LGBT critics accused Perry of queerbaiting and ‘fuelling the male gaze’ towards queer women. ‘Queerbaiting’ is a tactic for marketing content to LGBT consumers through hinting at, but not actually featuring, queer representation. Although Perry has subsequently acknowledged the ‘stereotypes’ present in the song, Rita Ora’s 2018 single, ‘Girls’, attracted similar criticism. A decade later, pop culture appears to have still not learned from Perry’s mistakes.
Yet this is the first time Perry’s career decisions have landed her in court. In 2014, Christian rapper Flame and others filed a lawsuit, which accused Perry’s song of copying their 2008 track “Joyful Noise”. The lawsuit focuses on the songs’ similar ostinatos (repeated riffs). On top of this was the claim that the Christian rapper was tarnished by its association with ‘Dark Horse’ and its black magic imagery. On 29th July, the writers and producers of the song were found guilty of copyright infringement. Damages have been set at $2.78million, of which Perry must pay $550,000.
To be clear, this is far from the first case of its type in pop music. Comparisons have been made to the copyright infringement lawsuit over ‘Blurred Lines’ – released the same year as ‘Dark Horse’ – and its similarity to Marvin Gaye’s 1977 song ‘Got to Give It Up’. In 2015 it awarded $7.4million in damages to Gaye’s family. As with the lawsuit against Perry, various musicians spoke out against this ruling due to the songs seeming to have merely a passing resemblance. But what are the key areas of contestation in such music copyright cases?
One controversial element of the case against Perry was the ‘access criteria’ – in other words, the likeliness that Perry or her team heard ‘Joyful Noise’ before writing ‘Dark Horse’. Before, such criteria were accessible by whether an artist owned a tape or went to a performance of a certain song. Today, the growth of streaming means all that’s needed is an internet connection to access almost any song. On the one hand, this availability helps bring cases of blatant infringement to light. But on the other hand, it leaves less clear-cut cases to rely on circumstantial evidence.
Listening to the two tracks side-by-side, I find the similarities uncanny – as did the jury.
With the ‘Blurred Lines’ lawsuit, Thicke had beforehand cited Gaye’s track as an inspiration; with ‘Dark Horse’, it’s more ambiguous. The track’s writers testified they had never heard ‘Joyful Noise’, and indeed, Flame is nowhere near as big a name as Marvin Gaye. However, it should also be noted that the track was from Flame’s 2008 Grammy-nominated album, ‘Our World: Redeemed’.
Furthermore, as is often forgotten, Perry started her music career in Christian pop (under the name Katy Hudson). Because of this, it’s easy to claim a possible link between Perry and the track.
Due to increasing ambiguity around access, copyright infringement cases rest significantly on ‘probative similarity’. The case against Perry sought to emphasise similarities in rhythm, pitch content, timbre and phrase length between the ostinato throughout ‘Joyful Noise’ and the ostinato during the verses of ‘Dark Horse’. Listening to the two tracks side-by-side, I find the similarities uncanny – as did the jury. But defenders of Perry believe such rulings should not be left to non-musical, uneducated jurors. Rather, they explain the similarities as generic musical elements, with Perry’s attorney accusing Flame of “trying to own basic building blocks of music…that should be available to everyone”.
Hence, the debate turns to the murky realm of what the law considers ‘fair use’. If the riff in question should be ‘fair use’, many fear this ruling is restrictive to music creators. Reacting to the ruling, publications like Variety have predicted a ‘chilling effect’ on songwriting; this resembles backlash to the ‘Blurred Lines’ ruling.
Despite the predictions of some music critics back then, there has been no apparent blow to songwriting. On the contrary, I would argue that such rulings are just as likely to cause a push for more originality and innovation in songwriting. If anything, it can be said that the ability to claim such similarity offers an indictment of the lack of originality shown by some mainstream artists.
It also raises the question of whether trap beats have a place in the music of mainstream white artists like Katy Perry – especially given her history of appropriating other cultures. As the ostinatos in question resemble trap music, the case brings to mind an uncomfortable history of mainstream white musicians profiting from black musicians’ inventions; Elvis Presley’s appropriation of rock ‘n’ roll is a well known example.
Trap music originated with African-American hip-hop artists, with the term ‘trap’ referring to places where drug deals occur. So using trap music makes no sense contextually to Perry’s upbringing or the song’s lyrics. Whether Perry’s case counts as appropriation, or as a harmless mixing of genres, will come down to personal opinion. Regardless, cases like this may encourage artists to develop their own original sounds over picking and choosing elements from music outside their culture.
Others have suggested such rulings encourage ‘copyright trolling’, where artists hoping to claim millions of dollars will attempt to file lawsuits based on the slightest bit of similarity. Of course, the true effects of the ruling – which Perry’s team is set to appeal – will only be seen in the coming years. Thus, it’s difficult to tell whether, in the future, such rulings will be the exception or the rule. In fairness, following the ‘Blurred Lines’ ruling, lawyers reported an increase in clients contemplating music copyright infringement cases. However, the majority of claims are dismissed early on, while others end up being settled outside of court. Furthermore, the overwhelming backlash to the ruling may prompt future cases to better consider the complexity of copyright infringement accusations.
Overall, this ruling has come to shock the followers of one of pop music’s biggest stars. Given the ambiguity over whether the similarities ‘Dark Horse’ has to ‘Joyful Noise’ were intended or should be considered fair use, it’s unsurprising the ruling has proved to be controversial. Many will be apprehensively awaiting the outcome of the appeal.
Regardless, in my opinion, claims that the lawsuit spells doom for songwriters internationally are a huge exaggeration. Rather, at most, this case is a sign for songwriters to innovate, not replicate. Let’s not forget that while copyright lawsuits may be embarrassing for figures like Perry in the short term, with allegedly a net worth in the hundreds of millions of dollars she can likely afford the $550,000.
However, with recent sexual harassment claims arising against Perry, the tide is turning truly against her. Model Josh Kloss who starred in the music video for ‘Teenage Dream’ in 2010 claimed that Perry pulled down his underwear without permission to reveal his genitals to onlookers. In addition, Tina Kandelaki has accused Perry of harassing her at an industry party by trying to kiss and inappropriately touch her.
Have these claims arisen in the wake of the controversy following Dark Horse, as it presented a good opportunity to question Perry’s morality? Will there be more?
The public eagerly awaits the verdict on the pop sensation.
Image credit: marcen27