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If a copyright lawsuit against superstar singer Katy Perry isn’t settled, she will likely head to trial for allegedly infringing copyrighted material to create the megahit song “Dark Horse.” This week, a federal judge in California rejected a summary judgment bid by Perry and fellow songwriters including Lukasz “Dr. Luke” Gottwald.
Marcus Grey, a Christian hip-hop artist known as “Flame,” alleges that key elements of “Dark Horse” derive from his own song “Joyful Noise.” That composition, co-written by Chike Ojukwu and Emanuel Lambert, was uploaded to YouTube in 2012, according to the court filing, and garnered more than 1.3 million views.
The writers of “Dark Horse” say they never viewed “Joyful Noise,” nor had they heard of the plaintiffs, but in her decision, U.S. District Court Judge Christina Snyder writes that the suing songwriters “have demonstrated a triable issue of fact as to access because ‘Joyful Noise’ achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and MySpace. Defendants’ concerns about the meaningfulness of the YouTube and MySpace view counts, the distinctiveness of the Christian music market, and the lack of commercial activity are questions of fact to be resolved by the jury.”
As for the alleged similarity between the two songs, the judge gives deference at this stage to plaintiff’s musicologist expert, Todd Decker, who declared that the ostinatos in both song were identical or nearly so in phrase length, rhythm, pitch content and timbre. Basically, the underlying beat that forms the bedrock of the songs. For a better idea of what’s in dispute, see the video below of the two songs that someone uploaded to YouTube — although important to note that the mashup is not evidence in this lawsuit.
Perry, Dr. Luke, and the other defendants attempted to convince the judge of no similarity by having its own expert turn in a report that the two songs shared no significant similarities beyond generic elements.
Snyder says she “cannot determine as a matter of law that the overlapping similarities identified by Decker are not protectable musical expressions.”
This is the second time in three years that Dr. Luke has faced a trial after being denied summary judgment in a copyright case. The producer, currently engaged in a separate and ongoing legal war with Kesha over sexual abuse accusations that he said tarnished his career, previously faced the music over the breakbeat used on the Jesse J hit “Price Tag.” That case was settled before getting to trial.
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