Copyright Chaos? 'Dark Horse' Verdict Could Lead to New Wave of Lawsuits

ISSUE 19 2019 - DO NOT REUSE
Courtesy Photo
A still from Perry’s “Dark Horse” video.

"When people see these huge headlines and how much money [can be awarded], it's so easy to file a lawsuit. It's becoming less of a one-off now."

Few music executives flinched after a lawsuit over "Blurred Lines" resulted in a ruling of copyright infringement -- and more than $7 million in damages -- for Marvin Gaye's estate against Robin Thicke and Pharrell Williams: It was just one jury verdict against songwriters who came off as unsympathetic in testimony. Then an appeals court upheld the verdict with damages lowered to $5.3 million. And on July 29, a jury ruled that Katy Perry and her co-writers had taken a six-note sequence from the song "Joyful Noise" and awarded $2.78 million to the Christian rapper Flame.  

Now publishers and songwriters are beginning to worry that juries might hear copyright infringement in an increasing number of hits, boosting the likelihood of future lawsuits and the possibility that more songwriters and publishers could be forced to share royalties with rights holders of older compositions.

"This will cause more cases to be brought," predicts Kenneth Sidle, a Los Angeles attorney who has represented Dolly Parton and John Fogerty in copyright-infringement cases. "There's a lot of songwriters out there who think they're being ripped off and can perhaps talk a lawyer into representing them, get a good jury and roll the dice."

Perry and her five co-writers, including Juicy J, producer Lukasz "Dr. Luke" Gottwald and Max Martin, called the verdict a "travesty of justice" in a statement on Aug. 5. They repeated their lawyers' argument that they hadn't heard the Flame track before they wrote "Dark Horse" and that there was no "substantial similarity" between the two songs. Although Perry will have to pay $550,000 in damages, her label, Capitol Records, is responsible for most of the rest.

Also concerning: The 9th U.S. Circuit Court of Appeals called for a new trial due to improper jury advisement in a claim by the estate of Spirit guitarist Randy Wolfe against Led Zeppelin for allegedly copying a riff from the song "Taurus" for "Stairway to Heaven." (The original jury ruled in Zeppelin's favor.) Together, the three cases -- all of which involved compositions rather than recordings -- could reshape both legal precedents and industry practices concerning what constitutes copyright infringement.

Usually, accusations of infringement don't result in litigation. But they often do result in giving credit -- and royalties -- to writers and publishers of similar songs. Creators and companies can buy "errors and omissions" insurance that offers some protection from infringement claims, but it's expensive: $20,000 to $30,000 a year, according to Lucas Keller, owner of management company Milk & Honey, which helps set up publishing ventures for songwriters. It could also change the atmosphere in writing sessions. "Now my writers can't go into a room and go, ‘OK, let's give that a Marvin Gaye vibe,' " says Keller. "That all can come out in discovery."

Richard Busch, the attorney who represented Gaye's family in the "Blurred Lines" case, says that songwriters should have been taking care not to infringe previous compositions all along. "The law has not changed," he says. "Music publishers and songwriters should be on notice that they cannot copy the work of other parties." Some songwriters arrange settlements to share credit rather than go to court: Prior to the "Blurred Lines" case, Sam Smith gave Tom Petty a reported 12.5% writing credit on his hit "Stay With Me" because of similarities to 1989's "I Won't Back Down."

Randall Wixen, founder of Wixen Music Publishing, which administers publishing rights for songs by The Doors, Neil Young and Petty, among others -- says that the jury in the "Dark Horse" case reached the wrong verdict. At the same time, he doesn't believe the decision will lead to a "chilling effect" because "it's extraordinarily expensive to bring a suit ... You've got to be willing to make a minimum $200,000 bet that your convictions that you were ripped off are correct. Hiring an expert who'll testify in your case can be $10,000 a day, easy."

One of the main issues in these cases is what evidence juries should consider -- the recording of a song, or just the written composition -- and whether a noninfringing similarity in recording style will affect the final verdict.

Another issue is that, in the digital age, it's harder for songwriters to argue that they didn't have the access to a previous composition, which is required for a finding of infringement, according to Eve Wagner, an attorney who represented Michael Jackson in a copyright case in the 1990s. Although Williams said in court that he was trying to "feel that feeling" of Gaye's music, the "Dark Horse" songwriters said they had never heard "Joyful Noise."

"In that sense, [the "Dark Horse" verdict] is more troubling," says attorney Howard King, who represented Williams and Thicke in the "Blurred Lines" case.

"High-profile artists have always gotten sued for copyright infringement," Wagner adds. "It's just the nature of the beast. But when people see these huge headlines and how much money [can be awarded], it's so easy to file a lawsuit. It's becoming less of a one-off now."

If songwriters will now have a hard time arguing that they couldn't have heard an earlier song and infringement can be based on a sequence of six notes, how can they protect themselves against potential lawsuits?

Easy, says King sarcastically: "Write a stiff." 

Additional reporting by Chris Eggertsen.

This article originally appeared in the Aug. 10 issue of Billboard.


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