"Dark Horse" Jury Will Consider Myspace Views During Katy Perry Copyright Trial

Jurors will be asked to consider whether Myspace and YouTube plays are proof that a Christian rap song was likely to have been heard by Katy Perry and her co-creators.
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Katy Perry

A copyright infringement trial over Katy Perry's "Dark Horse" is set to begin next week, and defendants want to ask potential jurors about their Myspace pages. 

The early 2000s social media site's relevance in a dispute over a 2013 song stems from the allegation that Christian rapper Marcus Gray's "Joyful Noise" was, in part, disseminated on Myspace. Gray, known professionally as Flame, claims "Dark Horse" infringes his copyright by copying its underlying beat. (Co-writers Chike Ojukwu and Emanuel Lambert are also plaintiffs.)

In order to succeed at trial, Gray will first have to convince a jury that the defendants (Perry, producer Lukasz "Dr. Luke" Gottwald and others) heard his song. U.S. District Court Judge Christina Snyder in August 2018 addressed the issue of access in denying the defendants' motion for summary judgment, finding the plaintiffs "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."

The defendants filed a motion in limine asking the court to preclude discussion of Myspace and YouTube, claiming the screen shots of archived web pages provided into evidence amount to hearsay. Snyder disagrees and will allow it — although she won't let Gray's expert Todd Decker play YouTube mashups comparing the two works or opine on how lay listeners have found similarities among them. (She also denied Gray's motion to exclude testimony from defense experts Lawrence Ferrara, Jason King and Charles Diamond.)

In a Thursday filing, the defendants proposed a set of questions for potential jurors. In addition to the standard inquiries about employment, previous jury experience and family life, the defendants want to ask jurors whether they've ever used YouTube, Myspace and Facebook and how much time, if any, they spend on the sites. They also want to know how they listen to music and which streaming services they use.

The latest pretrial development comes from Gray's Friday filing that asks the court to either preclude an argument that the plaintiffs' copyright is invalid or consider it outside the presence of the jury.

The defendants have argued, among other things, that "Joyful Noise" is actually a derivative work and the allegedly infringing instrumental track was created by Ojukwu separately. "Because 'Joyful Noise' is a derivative work, the copyright in 'Joyful Noise' does not extend to the pre-existing Beat, which was included under license from Ojukwu," states the Wednesday pretrial brief. "Moreover, there is no copyright registration for the Beat itself, which means that no claim for copyright infringement can be brought with respect to the Beat."

Gray argues the defendants waived their right to allege the registration is invalid by not asking the Register of Copyrights to weigh in. 

Snyder in June granted a joint request to bifurcate the trial. The liability phase is currently scheduled to begin Wednesday.