Katy Perry’s testimony on day one of the “Dark Horse” copyright infringement trial suffered from some technical difficulties.
With the singer’s attorneys trying and initially failing to play the song over the courtroom’s sound system, Perry — wearing a mint-green suit and matching hoop earrings — came up with a workaround after a minute or so of awkward scrambling.
“I could perform it for you live,” she offered to laughter.
Luckily for Perry (though perhaps unluckily for everyone else), the technical issues were quickly resolved; but the larger questions swirling around the case are decidedly more complicated. At issue is whether Perry and her collaborators on the song — which include producers Dr. Luke (a.k.a. Lukasz Gottwald) and Max Martin, rapper Juicy J and songwriter Sarah Hudson — used the underlying beat from Christian rapper Flame’s (a.k.a. Marcus Gray) 2008 song “Joyful Noise” in “Dark Horse” without he and his collaborators’ permission.
Gray and his co-plaintiffs Chike Ojukwu, Emanuel Lambert (a.k.a. Da Truth) and Lecrae Moore first sued Perry and company for copyright infringement in 2014, claiming, among other things, that their song had been tainted by what they termed “witchcraft, paganism, black magic and Illuminati imagery” contained in both the “Dark Horse” track and music video (Moore has since dropped his claim). In response, the defendants maintained they had never encountered “Joyful Noise,” nor heard of the plaintiffs, prior to the filing of the suit.
In his opening statement on Thursday (July 18), Gray’s attorney Michael Kahn told jurors the plaintiffs needn’t prove the defendants had “direct access” to the track — only circumstantial evidence that access was possible. He additionally noted the non-necessity of establishing intent, stating that “innocent infringement” would be enough to rule in his clients’ favor.
To establish widespread access to “Joyful Noise,” Kahn went on to note its presence on MySpace and YouTube, as well as the availability of the album on which it appears, Our World Redeemed, at retail outlets like Amazon and Best Buy. He further ticked off a list of achievements for the song, including its appearance on multiple Billboard charts, its various award nominations — including a Grammy nod for the album — and Gray’s performances of it at venues across the country.
In her opening statement for the defense, attorney Christine Lepera countered that the plaintiffs “do not have the evidence of widespread distribution” of “Joyful Noise” and that it defied “common sense” that the defendants would have heard it given its relative obscurity and the sheer amount of music available to stream online. She also argued that the underlying beat claimed by Gray and his co-plaintiffs — who have copyrights only to the composition of the beat, not to the sound recording — is too simple to merit a copyright claim: “You can’t copyright common building blocks of music,” she said.
When called to the stand, Perry reiterated her prior ignorance of “Joyful Noise,” with part of her testimony designed to combat inferences from the plaintiffs that her background as a Christian artist (she released a Christian-themed album in 2001, prior to her ascent to superstardom) made it more likely that “Joyful Noise” would have crossed her radar. Under cross-examination from Kahn, Perry instead claimed that listening to Christian music had never been a particular focus for her, telling the lawyer she was “mostly always listening to…secular music anyway,” including during the early part of her career and up to the present day.
Perry went in-depth on the creation of the Billboard Hot 100 chart-topper during her testimony, in the process attempting to dispel suggestions of impropriety on the part of she and her co-defendants. At one point, a quote culled from a 2013 New Yorker profile of Dr. Luke — in which Perry mentioned “YouTubing” with the producer during “Dark Horse” studio sessions — was characterized by the singer as merely “watch[ing] videos of cats” — not searching the streaming service for potential beats to use in their songs.
Later in her testimony, Perry also rejected Kahn’s earlier insinuations that cutting out the disputed opening beat of “Dark Horse” during her performance of the song at the 2015 Super Bowl, which occurred seven months after the filing of the lawsuit, was in any way an acknowledgment of infringement. She instead claimed that the cut was made due to time constraints alone.
“For the Super Bowl I was allotted [just] 12 minutes, and I wanted to perform as many songs as possible,” said Perry, who added that every other song she performed that night was also edited.
One cornerstone of the defense’s argument concerns the pedigree of “Joyful Noise,” with attorneys for Perry and her collaborators arguing that because Ojukwu created the beat separately — and did not independently register a copyright for it — the song is itself a derivative work and therefore its creators have no legitimate copyright claim to the beat on its own. “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 pretrial brief filed on Wednesday. “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.”
Attorneys for the plaintiffs previously argued that the defense waived their right to claim the copyright registration for the beat was invalid due to their failure to consult with the Registrar of Copyrights on the matter.
During Ojukwu’s testimony, Lepera again underscored the beat’s relative simplicity, this time by highlighting the musician’s prior claim that it had taken him only 30 to 45 minutes to create. She also noted that the individual sounds he strung together to build it were generated not by him but rather by the music-sequencing program he used to create the instrumental, FL Studio.
Following Ojokwu and earlier testimony by Lambert, the final witness to take the stand on Thursday was Gray. In a further attempt to convey the track’s reach beyond traditional Christian audiences, the St. Louis-based rapper stated that while the lyrical content of “Joyful Noise” is Christian-themed, it utilizes traditional hip-hop beats in an effort to appeal to a wider audience.
“I feel my music is unlimited — it’s for everybody,” said Gray, further noting his performances of the song at over 100 concerts across the country — many at churches, but others at secular venues including arenas and NBA games — as well as its use during various promotional interviews at local TV and radio stations during that time.
The trial is scheduled to continue on Friday with further testimony by Gray as well as additional testimony by his wife/manager Crystal Gray, Gottwald/Dr. Luke and Sarah Hudson. Max Martin, Juicy J and others involved are also expected to provide testimony later in the trial.