Did Katy Perry copy another band’s beat for her 2013 hit “Dark Horse”? And if she did, can a particular beat be protected by copyright law?
After a two-week trial, a federal jury in Los Angeles found that Perry’s “Dark Horse” impermissibly used the ostinato, or repetitive instrumental beat, from the song “Joyful Noise” by three Christian rappers. The jury also found that “Joyful Noise” was widely disseminated and that Perry had failed to show she created the beat independently.
The parties had stipulated that Perry profited from “Dark Horse” to the tune of $2.4 million. Before expenses, she apparently earned $40 million. The Christian rappers, “Flame” (Marcus Gray), Emanuel Lambert and Chike Ojukwu, sought $20 million in damages, or half of the gross revenues from “Dark Horse.”
However, the rappers acknowledged that other damage calculations would be fair. For example, they proposed that since the beat was featured in 45% of Perry’s song, they should receive 45% of the gross revenue.
Perry denies ever having heard the song “Joyful Noise” and says she didn’t intentionally lift the beat. A University of Southern California professor interviewed by Courthouse News Service questions what Perry could have done to avoid liability if she didn’t intentionally infringe on the “Joyful Noise” beat.
In the end, the jury settled on $2.8 million in damages. Of that, Perry is personally liable for $550,000. Capital Records will pay $1.2 million. Three other defendants, Universal Music Group, Kobalt and a songwriter, will pay $950,000.
According to Courthouse News Service, Perry’s team gets to keep over half of the profits from before the trial and will retain all future profits from the song.
Perry’s attorney told reporters that she plans to challenge the verdict “vigorously” on appeal. She claims to have been receiving messages of outcry from numerous people, including musicologists.
The attorney contends that the “only matter in common is an unprotectable ‘C’ and ‘B’ note repeated,” which should not be enough for copyright protection. She argues that, if this ruling stands, it will encourage songwriters of low-level hits to scrutinize greater hits for minor similarities and then sue for damages.