Katy Perry’s 2014 megahit collaboration with Juicy J “Dark Horse” is indeed, as the song goes, one heck of a storm. Apart from being the highest-certified female single in the history of the Recording Industry Association of America (RIAA) at 11x platinum and one of the most viewed music videos of all time at almost 3 billion views, it is also the subject of a much contested issue of copyright infringement recently, when the Christian rapper/artist Flames sued the pop singer, together with her label and other songwriters involved in the production of the hit single, for ripping off his song “Joyful Noise” released in 2008. A California jury found the allegations to be right, and awarded Flames with a staggering $2.8 million reward, asking more for a compounding interest rate of 1.75% for the “missed profits” he would have otherwise earned if he was given song credits since 2015. Since then, Katy’s team filed for an appeal to overturn the decision, and has since gathered the voluntary support of a team of music experts to aide her defense.
Even though the question in the case was legally answered, for the mean time: that the hit single ripped off a relatively unknown song; the overarching idea that concerns the future of songwriting and the culture of shared space inevitable in music production remains dark and baffling: is this the legal decision that stands for artistic integrity?
Capable of (Sounding Like) Anything
The similarity of Dark Horse to Joyful Noise boils down to one particular riff, professionally known as an ostinato, the can be heard in minuscule portions of Katy’s track, but is the repeating pattern on Flame’s track. When reviewed by Adam Neely, a graduate from Berkley College of Music, he postulated that this particular “minor note” cannot be owned by anyone because it is a secondary element that has been shared multiple times, as far as music history is concerned. The idea of ownership is tied with originality, and in any other circumstances in life, you can’t own anything that predates your work or your existence. The riff is also considered a basic component of music production that countless number of writers and producers have used, and if we are to give one person rights to this element, whose to stop all of the others to get their claim? In such a case, this precedent sets a dangerous and impractical atmosphere to participants and contributors in the industry, since every song will in one way or another be influenced to use a basic musical element that will be shared by any other song. We will soon live in a music catalog where one song has 100+ credits attached to it.
With any other profession, music is evolutionary. We cannot remove the inevitable occurrence of one note bearing similarity with another, especially in an environment where influence plays a huge factor. This is not to say that credit should be completely thrown out the picture, but it has to be properly placed when a direct, conscious decision of adapting an existing musical product is made with the intent of owning it as one’s own i.e. Lizzo’s case of extending writing credits of her single Truth Hurts to the owner of a tweet that completely resembles a lyric of her work. And even in such a case, one has to establish the exclusivity of that element as completely theirs only, otherwise we have to recognize that artists develop their creative craft from prevailing sounds and trends of past musical works that appeals to their taste or musical track. You can’t held a pop artist trying herself onto the trap genre copying you just merely because you’re a rapper. The courts need to look onto the bigger scenery that concerns the enrichment and growth of the music industry when deciding these issues, not just the momentary effect it will have to the pockets of the preferred “injured” party.
Do You Dare to Judge This?
Perhaps the whole decision can be dissected to the process of how it was rendered: it was decided by a jury of non-musical experts. One can argue that everyone, in their own capacity, is entitled to be a judge of music since it is a universal language we all enjoy (and criticize), but when the basis of ownership is placed on particular portions of music – and involves the mention of a list of jargon exclusive in the making of music – is it fair to leave the decision-making power to the average Jane and Joe? A study by Jamie Lund, professor of property and intellectual law, suggested that in determining commonalities in songs, majority will “find musical works to be similar based not on shared primary musical elements like melody, harmony, and rhythm, but rather on secondary or sonic elements like volume, timbre, instrumentation, and style” which are not protected assets of a song. This means that we, as the general population can just indiscriminately assert an issue of copying between two music because they share something that is not even copyright-able. The use of a jury can be dangerous because not only they perceive music differently than experts, but their lack of knowledge translates to them being easily persuaded, even by wrong presumptions and principles on music theory, as what many believed happened to the case involving Dark Horse, when the whole issue was only guided by the opinion of Flame’s witness expert Todd Decker.
Jon Caramanica in his critical opt-ed on the New York Times proposes the establishment of an “arbitration panel” in helping with cases of copyright. This panel will be made up of a “jury of peers” from various departments of music-making so a much educated, well-derived conclusions and set of rules can be made regarding issues involving rights to music. Sort of like having the Grammy committee, but instead of trophies, artists will be awarded with rights and credits by a selected group of people who are familiar with the elements of music production. Although the risk of industry politics and influence may affect such decisions, it is much easier to defeat these wrongful judgments because established principles in music will be the guiding factor in refuting or confirming an expert’s opinion, not the emotional pity or adoration of a clueless crowd to a particular artist.
So You Wanna Play With Fairness?
With 15 musicology experts rallying as an Amicus Curae (legal word for a group not essentially part of any party of the case but whose role is to aide the court in offering educated insights and information to the case) to rectify the ill-conceived judgement of the jury, Katy Perry’s appeal seems to be seeing the light of day for a probable accomplishment. Copying requires the element of knowing the copied material first and foremost, but to insist that because of the access to various channels that Perry and her label have that makes them aware of Joyful Noise’s existence and subsequently acted to infringe it, is nothing short of unfair, presumptive and malicious. Claimants are using the ubiquity of the Internet to get away with the burden of proving the guilt of committing an actual copy – and that has to be reconsidered when revisiting Dark Horse’ case. Did they really know Joyful Noise when penning the song? The mere existence of the song on streaming apps or digital stores should not constitute automatic recognition.
Last but not the least, infringement should not concern the context of songs, if it doesn’t concern songwriting at all. A Christian artists using religious blasphemy to defend the wholesomeness of his work being attacked by a pop star’s perceived “witchcraft” visionary for her music should never play any role in determining whether copying was made (but will surely play a role in convincing a jury). In fact, it counters that idea, for it only suggests that Dark Horse was intended not to usurp Flame’s target demographic, thus clearly separates itself from Joyful Noise in terms of composition.
When Dark Horse gained it’s success, it should be attributed not to the genius of any other musician that it coincidentally shares a basic element with, but because of the brave experimentation of an artist to expand her genre and make an impressive, long lasting, career-defining hit that will forever stick like grit into our collective musical consciousness. And this type of artistic hard work is the one that we should promote and protect.
The Perrys 