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Bindu De Knock: 'The Joyful noise of money. Katy Perry loses lawsuit'

Katy Perry and Capitol Records have been ordered to pay $ 2.78 M in damages to the copyright owners of the song ‘Joyful Noise’. Perry and her team of songwriters including Max Martin were found guilty of copying elements from Flame’s Joyful Noise. As a result of the established copyright infringement, Perry and her record company must pay damages to the Joyful Noise creators. Just like the Blurred Lines-case, this case too stretches the limits of copyright law to grant protection to ordinary musical expressions.

The nine jurors have decided that team Katy– knowingly or unknowingly – copied elements of the song Joyful Noise. Based on a four-bar isolated melody alone, the jurors decided the repetitive musical phrase (or ostinato’s) were substantially similar in both songs. Had they taken into account all available musical information and understood what such information means, they might have concluded differently.

Takeaway of this case: We should be more critical of granting protection to ordinary musical expressions that merely rely on musical building block. Music is complex and it should not be simplified in order to make the comparison between two songs easier for non-musicians. Incomplete comparisons of two songs will lead to misguided judgements. To begin with, Plaintiffs ownership of copyright in the ‘beat + ostinato’ should have been denied.  If copyright infringement cases do not properly assess originality, claims incentivized by monetary gains will (further) erode copyright law.

Infringement Criteria under US law

To establish copyright infringement [1], plaintiffs must show 1) ownership of copyright and 2) Perry (and her songwriters team) copied protected elements of their work. Where there is no direct evidence of copying, proof of infringement involves a fact-based showings that Perry had 1) access to Joyful Noise and 2) the two works are substantially similar. Apparently, ownership of copyright was not in dispute (surprisingly !).

Access

To the question whether team-Katy had access to Joyful Noise, the jury replied with an unanimous ‘yes’. The jurors have established that there was a reasonable possibility that team-Katy may have heard the song Joyful Noise. If there is no direct evidence that team-Katy had access to the song, circumstantial evidence can be used.
Even though the plaintiff’s track was not commercially released, YouTube and MySpace availability was sufficient. Joyful Noise had millions of views and a Grammy Nomination and as a minister’s daughter, Perry was assumed to be a fan of Christian rap music (yes, read that with a healthy dose of sarcasm). In addition, it is a common songwriting practice that a team of songwriters composes an instrumental and a topline which is then provided to an artist to record. I doubt Max Martin has the time to research YouTube for Christian rap songs. Access can be considered a questionable criterium in copyright cases. Any chain of events can be fabricated, and ‘a reasonable possibility’is too low of a threshold. A reasonable probability would be a more appropriate criterium.

Substantial similarity

To determine whether two fragments of songs are substantially similar the legal doctrine of the Ninth Circuit (LA falls under this jurisdiction) employs a two-part test: 1) objective extrinsic test and 2) subject intrinsic test.

If a judge concludes that objectively the two songs are substantially similar, the case moves forward to a jury trial. The Jury must then decide whether the two songs are intrinsically similar.

During the objective test, musicologists’ reports are submitted by both parties. According to the plaintiffs’ expert, the ‘descending ostinato’,which is the backbone of both the instrumental part of the songs is supposedly identical. And, ay there’s the rub….. The musicologist claims that “the ostinatos are identical in phrase length and identical in rhythm, and remarkably similar in the timbre of the upper and primary voice, pitch content and melodic contour. Any differences between the ostinatos would be trivial and due to the generic context of the two songs. Dark Horse contains the identical highly characteristic and essential musical materials from Joyful Noise”.

Team-Perry’s musicologist argued that the two songs do not share structural, harmonic, rhythmic, melodica or lyrical similarities, individually or in combination. However, in her opinion, Judge Snyder, followed the plaintiffs’ musicologist. And hence, the jurors are asked to answer the question whether the songs are intrinsically similar.

Comparing Dark Horse and Joyful Noise

Comparing two pieces of music is a delicate and factual matter. Music is three dimensional and small differences do matter, especially considering harmonic content. The ostinato in Perry’s track is played over a Bbm (B flat minor) chord. The ostinato in Flame’s track is played over Am (A minor) chord. This aforementioned difference seems tiny but considering the complete musical constellation, the result is a different musical phrase. In legal jargon that translates to different factual information. The beat (kick-snare-hi hat) is different in both songs and is ordinary at best. In conclusion, the beat itself lacks any originality and hence is not a protectable expression.
The ostinato itself is a descending motif which in the case of Joyful Noise, follows an Am-scale: c-b-a. Rhythmically the ostinato constitutes of quarter notes in a 4/4 meter. It cannot get more basic than that (listen to the Art of Noise’s Moments in Love which follows a similar pattern). Such commonplace musical elements should not be deemed original and hence not copyrightable. Production wise there isn’t much going on either in Joyful Noise. The so-called ‘characteristic ostinato’ consists of a simple saw lead sound with a pitch bend. Is the combination of the ordinary ostinato with an ordinary beat copyrightable? In this case, I don’t believe it should be as the combination of both, does not result in an original protectable musical expression.

The nine jurors decided that team Katy had – knowingly or unknowingly – copied Joyful Noise. As the ownership of copyright was not in dispute, they jurors applied the intrinsic test and based on the isolated melody alone, decided both ostinatos were substantially similar. Had they taken into account all available musical information and understood what such information means, they might have concluded differently. That said, this case should’ve never passed the first hurdle: plaintiffs’ ownership of copyright in the ‘beat + ostinato’ should have been denied.  There is also prior art ranging from Bach to the Art of Noise’ Moments in Love which would deny the Joyful Noise’s ostinato its alleged originality.

The song Joyful Noise as a whole is copyrightable but we should be more critical of granting protection to ordinary musical expressions that merely rely on musical building blocks. Considering the lack of a uniform methodology for forensic musicologists in copyright infringement cases, it may be necessary for the courts to engage an independent musicologist. Finally, the mere sonic association between two songs is not a legal criterium to assess copyright infringement. In conclusion, this decision continues the dissonance in music copyright infringement claims.

In the meantime, it has been announced team Katy will appeal the decision.

Ad lib: Originality in music

In the slipstream of this verdict, copyright law is condemned as messy and outdated. There is nothing wrong with the framework of copyright law. The problem lies in the simplification of musical information which distorts the assessment of originality in legal proceedings. In addition, musical facts are often not accurately translated in legal arguments.

This Perry decision is a mockery of copyright law and what it intends: to advance and the arts. As I wrote earlier, the Blurred Lines verdict (see a previous blog) created a slippery slope for infringement criteria: protection is granted to commonplace musical elements or the combination of such elements. Does a McLaren look identical to a Peugeot because there is a steering wheel, a couple of doors and four wheels underneath the car? You laugh….but in recent music copyright cases, this kind of comparison have been made with undesirable effects.

Stretching copyright law to grant unprotectable elements protection, a bigger funnel through which infringement claims pass is created. In addition, nowadays there is more music available and popular music appears to be less (musically) complex. The combination of those factors results in more songs being susceptible to copyright infringement claims.
 
For my master thesis I studied all music infringement cases in the US and The Netherlands available at the time. I concluded that most cases had no merit as judges concluded that the plaintiffs’ piece of music was not original. No originality means no copyright protection – no copyright protection means no infringement. Massive damages rewards were the exception and now they have become the new standard. Times have changed….and in this case, not for the better.

As the damages awarded in legal proceedings in the US can be substantial. This predicament has resulted in a rise of copyright infringement claims: once you have a hit, someone will claim infringement. For some, it seems to have become business model…so ‘What’s going on’?

Coda: How to turn the tide

In another high-profile case in which Led Zeppelin’s Stairway to Heaven is claimed to be infringing Taurus’ spirit, an amicus curiae brief was filed supported by 123 musicians. This is written motion by a party who is not a party in the legal proceedings to provide additional information which may be instrumental to the legal proceedings. In this motion, the musicians ask for judicial clarification in determining whether musical building block in songs are protected by copyright. The motion points out the complexity of music and how important it is in infringement cases to accurately assess if musical building blocks have been used in an original manner which constitutes a protectable musical expression.

Whether or not a piece of music is copyrightable is factual question. The assessment of originality in a piece of music should be based on all available musical elements. How are those musical elements combined in a particular piece of music? Is that combination a protectable musical expression? Not all musical creations will be copyrightable and that’s ok.

Musical building blocks such as chords, chord progressions, scales, rhythm, note lengths can be compared to the alphabet. Those should be free to use for everyone. Letters allow us to build words. But only words in a particular order that form an original expression are copyrightable. So why is it so hard to translate that same concept to music: not every motif, phrase is copyrightable?

Music is complex. It should not be simplified in order to make the comparison between two songs easier for non-musicians. Music is a commodity and seemingly this creates the illusion that the ‘science’ behind music is easy. No one would claim a patent for a flu vaccine infringes another patent, because both vaccines cure flue and are administered with a syringe. However, in the Perry’s case, that is exactly what happened. If copyright infringement cases do not properly assess originality, claims incentivized by monetary gains will (further) erode copyright law.

Bindu De Knock advises and litigates on subjects such as music rights and music copyright infringement claims. For more information, contact CrossLink Legal.

Sources:
https://www.billboard.com/articles/business/legal-and-management/8524466/katy-perry-dark-horse-guilty-verdict-dr-luke-max
https://variety.com/2019/biz/news/katy-perry-dark-horse-lawsuit-joyful-noise-chilling-effect-on-songwriting-1203292606/
https://www.theguardian.com/music/2018/sep/28/led-zeppelin-plagiarism-taurus-spirit-stairway-to-heaven-new-trial
Read more in Dutch : ‘Noot voor Noot’ by Bindu De Knock (delex 2015)
[1] The Dutch criteria for copyright infringement differ from the ones applied in Katy Perry’s case.