Has Katy Perry indeed been a Dark Horse or not?

Marcus Gray (‘Flame’) & Others v Katy Perry & Others…. Which party will be making Joyful Noise at the end of this copyright infringement trial?

You’ll be forgiven if you were not aware of the current music copyright infringement trial against Katy Perry which commenced this week in the California Central District Court.

The infringement claim was filed by Christian hip-hop / rap artists Marcus Gray (known as ‘Flame’), Chike Ojukwu and Emmanuel Lambert 5 years ago back in 2014 (remember the good old days when Pharrell Williams’ “Happy” and Ed Sheeran’s “Thinking out Loud” dominated the airwaves?)

Well, fast-forward to 2019 and the lawsuit is now finally before the Court for trial to determine whether Katy Perry has indeed infringed the copyright of Marcus Gray & others as alleged. Given that we have circled the sun 5 times since the claim was initially filed, we thought you would find it handy to have a snapshot update as to the basic aspects of the copyright infringement claim to bring you back up to speed:

Case Number:  2:15-cv-05642-CAS (JCx )

Judge: Honorable Christina A. Snyder

Plaintiffs: Marcus Gray (known as ‘Flame’), Chike Ojukwu and Emmanuel Lambert

Defendants: Katy Perry and & other co-writers

Alleged original work: ‘Joyful Noise’ by Marcus Gray (and co-writers Chike Ojukwu & Emmanuel Lambert) released in 2008

Alleged infringing work: ‘Dark Horse’ by Katy Perry & other co-writers released in 2013

Allegations: Copyright infringement (the Plaintiffs allege that the underlying beat of Dark Horse is a copy of the underlying beat to Joyful Noise): –

-The Plaintiffs claim that the Defendants did not seek or obtain permission from Plaintiffs to use the Joyful Noise song in creating, reproducing, recording, distributing, selling, or publicly performing the Dark Horse song.

-The Plaintiffs state that they did not give the Defendants permission, consent, or a license to use the Joyful Noise song for any purpose, including creation of a derivative work based on Joyful Noise.

-The Plaintiffs state that the Defendants have sold, performed, and otherwise commercially exploited and profited from the Dark Horse song in numerous ways

-The Plaintiffs state that the infringing actions by the Defendants has caused irreparable harm to Plaintiffs’ reputation and the reputation of the Joyful Noise song within the Christian gospel music world by, among other things, creating a false association between the music of Joyful Noise and the anti-Christian witchcraft, paganism, black magic, and Illuminati imagery evoked by the Dark Horse song, especially in the music video version.

Legal hurdles

In accordance with Californian law, the Plaintiffs have two hurdles to pass in order to be in with a chance of their copyright claim succeeding. Firstly, they need to show that the Defendants had access to their work, and once this has been established, they then need to be able to show that the works are substantially similar.

In attempting to meet the first hurdle, the Plaintiffs are reaching for and dusting off a particular weapon in their armoury to try and show that there is a reasonable possibility that the Defendants had a chance to view the protected work. That weapon is the social media relic that is ‘Myspace’ (remember good old Myspace?) It seems as if the Plaintiffs will be relying on the viewer counts of the Joyful Noise song on not only YouTube but also on Myspace to try and convince the jury that the Defendants heard the song.

The trial judge has barred an expert from playing fan-created mashups of the two songs that highlight the similarities but have a listen for yourself and see what you think!

Briffa comment: As the owners of the copyright for Joyful Noise, the Plaintiffs are the owners of the exclusive rights to reproduce that song, to distribute copies of that song, to prepare derivative works based upon that song, and to publicly perform that song.

This position is the same with regards to copyright owners in the UK, although it must be noted that copyright ownership is not something that you obtain as a result of registration as it is in the US. Copyright in the UK does not need to be registered as it is automatically granted to the original author of a work as long as the work is original.

In the UK, copyright subsists within original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and typographical arrangements of published editions.

Copyright protection in the UK lasts for the lifetime of the author and then for a period of time from the date of the author’s death (70 years for original literary, dramatic, musical, artistic works & film, 50 years for sound recordings and film and 25 years for typographical arrangement of published editions).

Therefore, an infringement claim can be commenced by the estate of the deceased author as long as it is within this timeframe. After the 70-year post-death period has lapsed, the work enters the public domain.

In order to succeed with a copyright infringement case in the UK, the Claimant will need to prove that (i) there is a causal link between the two works so that the copyright work, or a substantial part of it, is the source of the infringing work, and (ii) there is objective similarity between the infringing work and the copyright work.

As you can imagine, it is advisable (and way more cost effective) to obtain permission by way of a licence from the copyright owner when producing a work in which you are aware features a copied aspect of somebody else’s work.

Here at Briffa we can assist you with all of your copyright matters (whether you have been infringed or are the alleged infringer). We can also assist with drafting copyright licenses and assignments should you as the copyright owner wish to exploit your right in these ways, and we can review such documents prior to you signing should you seek to use copyrighted work or become the legal owner of another’s copyright. Please contact us if you wish to discuss your intellectual property rights.

Written by Gloria Aboagye, Solicitor