A federal appeals court on Tuesday (Jan. 11) looked unlikely to reinstate a $2.8 million copyright verdict against Katy Perry over 2013 chart-topper “Dark Horse,” with one judge even saying he had to re-listen multiple times just to identify the “purported similarities” to an earlier song.
During an hour-long hearing, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit appeared skeptical of accusations leveled by a rapper named Flame that Perry’s hit had infringed the copyright to his earlier track called “Joyful Noise.”
The case made headlines in 2019 when Perry was hit with a $2.8 million verdict, but a federal judge later voided that verdict on the grounds that the short snippet allegedly copied by Perry was too basic to have been covered by copyright.
Flame is currently is asking the Ninth Circuit to reverse that ruling, but at Tuesday’s hearing, the panel didn’t seem particularly inclined to do so. At one point, Judge Richard Clifton wondered why the court should extend a “monopoly” that could limit “future composers.”
“Why does the Copyright Act protect it?” Judge Clifton asked, referring to the short musical phrase allegedly copied by Perry. “Why is it that you’d give protection to that short, maybe-not-all-that-distinctive phrase?”
“Dark Horse,” released in October 2013 off Perry’s fourth album, Prism, was a smash hit. The song, which featured Juicy J, spent 57 weeks on the Billboard Hot 100, including four weeks at No. 1 in early 2014.
Flame, whose real name is Marcus Gray, sued Perry in July 2014, claiming she had lifted a key “ostinato” — a short series of notes that’s repeated throughout a song — from his “Joyful Noise” and used it prominently in “Dark Horse.” And the case initially went well, resulting in a $2.8 million infringement verdict against Perry in July 2019.
But in March 2020, Judge Christina A. Snyder overturned the verdict against Perry. Citing a high-profile ruling on “Stairway To Heaven” that said basic musical “building blocks” are not subject to copyright law, the judge ruled that Flame’s ostinato — comprised of just eight notes — was too simple and commonplace for protection.
Seeking to overturn that ruling on Tuesday was attorney Michael A. Kahn of the law firm Capes Sokol, who represents Flame. He told the court that Judge Snyder should not have meddled with verdict reached by a jury, arguing they had seen detailed evidence and heard extensive expert testimony before issuing their verdict in favor of Flame.
But members of the panel pushed back, suggesting that the trial judge had done nothing wrong by tossing out the verdict against Perry. Judge Milan Smith pointed out that judges themselves are clearly entitled to apply the so-called extrinsic test to filter out unprotectable elements from a copyright case.
“It seems to me that the case law says that we as judges are fully authorized and empowered and indeed required to examine the extrinsic test ourselves,” the judge said.
Echoing that line of reasoning was Christine Lepera, counsel for Perry’s label Capitol Records. She argued that Judge Snyder “did the absolute right thing” by analyzing the case and overturning the verdict. She said the judge had “fixed a wrong” committed by a jury who perhaps “wasn’t cognizant of how this should work.”
“It’s imperative to allow that so that there is not a situation where these building blocks are monopolized,” said Lepera, an attorney at the law firm Mitchell Silberberg & Knupp. “That’s the danger here.”
Near the end of the hearing, Judge Clifton took a lull in the proceedings to once again express doubt about the case against Perry. He said it had taken him several re-listens before he could even “figure out exactly what the purported similarities were.”
“After the first couple listens, I really had to focus to try figure out what little short segment matches in the same way,” Clifton said. “It took enough work that I began to wonder: how exactly does that become something protectible?”
Attorney Vincent H. Chieffo of the law firm Greenberg Traurig, representing Perry herself, also briefly took part in the arguments. But most of the defense case was handled by Lepera, who represents Capitol Records, producer Dr. Luke, and several other individuals and companies involved in the creation of “Dark Horse.”
Following the hearing, the panel will weigh the merits of the case and issue a ruling at some point in the months ahead.