The writers of Katy Perry’s song “Dark Horse,” who were found by a jury to have infringed on the copyright of Flame’s song “Joyful Noise” in a a $2.78 million decision this week, issued a statement today calling the decision a “travesty of justice.”
“The writers of Dark Horse view the verdicts as a travesty of justice,” the statement reads. “There is no infringement. There was no access of substantial similarity. The only thing in common is unprotectable expression — evenly spaced “C and “B” notes — repeated. People including musicologists from all over are expressing their dismay over this.
“We will continue to fight at all appropriate levels to rectify the injustice,” the statement concludes, presumably meaning that, as expected, an appeal is in the offing.
The statement was issued by Perry’s attorney, Christine Lapera, on behalf of the writers, who are Perry; producers Dr. Luke (Lukasz Gottwald), Cirkut (Henry Walter) and Max Martin (Karl Sandberg); rapper Juicy J (Jordan Houston); and lyricist Sarah Hudson.
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The jurors in the copyright case came in with a judgment that Perry should pay the Christian rapper Flame (Marcus Gray) $550,000 after determining that her 2013 hit borrowed from his 2008 song “Joyful Noise.” Capitol will be responsible for paying most of the $2.78 million balance.
Lawyers for Gray and his co-writers had asked for nearly $20 million in the damages phase of the trial, which began Tuesday, after the first phase in which the jury ruled Gray’s song had indeed been copied. Defense lawyers had argued that $360,000 was a reasonable figure.
“These defendants have made millions and millions of dollars from their infringement of the plaintiff’s copyright,” Gray’s attorney, Michael A. Kahn, said in court. Countered the defendants’ attorney, Aaron M. Wais, “They’re not seeking fairness. They’re seeking to obtain as much money as possible.”
The plaintiffs contended that “Dark Horse” was responsible for $31 million coming in to Capitol, counting not just profits from the single itself but the album and live DVD on which it appeared. Capitol disputed that accounting and maintained that after production and promotion expenses, the label’s profits from the song were only $650,000.
Essentially, Gray’s attorney wanted to argue that “Dark Horse” was responsible for virtually the entire success of the entire “Prism” album and its offshoots, while Capitol wanted to argue that, as one of 13 songs on the album (or 16 on the deluxe edition), the album’s earnings should be divided by that many numbers. Clearly, the jury decided that the answer lies somewhere in the middle.
However, that process may take months or years, as an appeal seems likely. A motion from Perry’s lawyers, requesting U.S. District Judge Christina Snyder to rule that no reasonable jury could find copyright infringement based on the evidence presented at trial, is still pending. If Snyder takes Perry’s side, the damages ruling is moot.