Jurors in Los Angeles last week gave a ruling that singer Katy Perry, her co-songwriters and Capitol Records must pay Christian artist Flame (whose real name is Marcus Gray) $2.78 million for copyright infringement. The songs in question are Perry’s 2013 hit song “Dark Horse,” and Flame’s 2009 song “Joyful Noise.” The jury unanimously agreed that Perry’s “Dark Horse” copied the catchy electronic beat of the “Joyful Noise,” rejected the defendants’ positions that they had never heard, much less copied the beat. Perry will be docked more than $550,000, with the bulk of the damages assessed to Capitol Records.
If we made a list of megastars who have faced similar suits the list would look something like: Katy Perry, Pharrell Williams, Robin Thicke, Led Zeppelin, Drake, Beyonce, Jay Z, Lady Gaga, Bruno Mars, Ariana Grande, Ed Sheeran and more.
So what is going on? Is there an epidemic of musical plagiarism? Unethical copying? Research in recent years suggests that humans innately recognize universal patterns in music, such as certain combinations of beats. Humans are, in effect, hard-wired for music. Although an entire field of study of “musical borrowing” documents the commonplace overlap of musical works from classical to contemporary, copyright law is a lengthy-term of equal to the author’s life plus 70 years. These suits put in the cross-fire the “fair use doctrine” that is supposed to provide an essential limitation on infringement claims, allowing some breathing space for creators to borrow parts of existing works in the process of creating new, transformative practices.