Dark Horse Dispute Runs On

If you have been keeping track of our updates on this case here then you will know that at the end of last year, a federal jury found against Katy Perry for alleged copyright infringement in her song “Dark Horse” (the second biggest selling song for 2014). The case was brought by a Christian rapper called Marcus Gray in 2014 and alleged that Perry and her team had plagiarised his song “Joyful Noise” (Gray also argued that his reputation as a Christian artist had been damaged because of the dark imagery in the song’s video).

The main premise of the suit was that Perry and her team had copied a simple eight-note pattern, known as an ostinato, from the rapper’s song. During the initial trial, Perry’s lawyer argued Gray and his team were “trying to own basic building blocks of music, the alphabet of music that should be available to everyone”. In a shock decision in July 2019, the jury ruled in Gray’s favour ordering Perry and her team to pay out $2.8 million in damages (with Perry herself being liable for $550,000).

An appeal has just reversed that decision, with the judge vacating the jury’s verdict on an application from Perry’s lawyers. What this effectively asks the judge to do is to find that no reasonable jury could have come to the decision it did.

In making the ruling, the judge clearly agreed and said it was “undisputed” that the eight-note section of Dark Horse in question was “not a particularly unique or rare combination” of notes. Gray has stated his intention to appeal the decision, so it will be interesting to see where the story goes from here as this is unlikely to be the last chapter in the saga.

Briffa Comment

This decision comes close on the heels of another copyright case involving Led Zeppelin’s song “Stairway to Heaven” as discussed in our previous blog here. Part of that case also hinged on whether simple musical elements could be copyrighted (with the judge finding in Led Zeppelin’s favour) so it will be interesting to see how this body of case law develops in time.

Here at Briffa, the team benefits from over 25 years’ experience in acting for both claimants and defendants in copyright infringement cases: if you fall into either of those categories, or just want to learn more about protecting your intellectual property, get in touch today to see how we can assist.

Written by Tom Synott, Solicitor