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Katy Perry Asks Judge to Throw Out $2.78 Million 'Dark Horse' Verdict

Katy Perry
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Katy Perry attends the Chanel Haute Couture Fall/Winter 2017-2018 show as part of Haute Couture Paris Fashion Week on July 4, 2017 in Paris, France. 

As expected, Katy Perry, her collaborators and Capitol Records have begun the process of asking to appeal the verdict in July that found them guilty of swiping a beat from a Christian rap song for her 2013 hit "Dark Horse." 

Perry and her team were ordered to pay $2.78 million to rapper Marcus Gray (who performs as Flame) and his co-writers, who originally sued in 2014 over similarities between "Dark Horse" and Gray's 2008 song "Joyful Noise." But Perry wants out of that ruling, according to court documents filed in California on Oct. 9 and obtained by Billboard

Lawyers for Perry have filed a motion for judgment as a matter of law, which means they claim the opposing party has insufficient evidence to support its case. The new filing reiterates many of the defense's core arguments, including that the only claimed similarities between the two songs are small "indisputably commonplace elements," that the plaintiffs lack a copyright registration for the beat in question itself, and that the plaintiffs didn't prove that the authors of "Dark Horse" could have had access to "Joyful Noise" prior to writing the pop song.

"Plaintiffs did not present any direct evidence of access or circumstantial evidence of a chain of events linking 'Joyful Noise' to the relevant authors of 'Dark Horse,'" the case reads. "Nor did Plaintiffs present sufficient evidence of widespread dissemination of 'Joyful Noise' that would give rise to a reasonable opportunity to hear 'Joyful Noise.'"

They also argue that there's no way to calculate the "Dark Horse" revenue attributable to the alleged infringement, as the jury attempted to do: "No legally sufficient evidentiary basis supports the jury’s finding that 22.5% of the net profit earned by each Defendant from 'Dark Horse' was attributable to the use of the 'Joyful Noise' musical composition in Ostinato 2."

Finally, they complain of "misconduct at trial" by one of the plaintiffs' witnesses, musicologist Dr. Todd Tecker, whom they claim "gave improper and highly prejudicial testimony."

Perry's lawyers have asked Judge Christina A. Snyder to throw out the jury's verdict, order a new trial, and/or reduce the damages awarded to Gray. 

Michael A. Kahn, one of the attorneys for the defense, said over email that "We will vigorously oppose the motion, strive to uphold the jury’s verdict, and continue to fight for our clients’ rights.” Billboard has reached out to attorneys for Perry for comment.

Also found liable were Perry’s “Dark Horse” collaborators Dr. Luke, Max MartinHenry Walter (Cirkut), songwriters Sarah Hudson and Jordan Michael Houston (Juicy J), along with Capitol Records, Warner Bros. Music Corporation, Kobalt Publishing and Kasz Money Inc.