IP Law Daily Jury finds Katy Perry hit ‘Dark Horse’ infringes Christian hip-hop song ‘Joyful Noise’
Tuesday, July 30, 2019

Jury finds Katy Perry hit ‘Dark Horse’ infringes Christian hip-hop song ‘Joyful Noise’

By Cheryl Beise, J.D.

Katy Perry and others unlawfully copied protected instrumental beat of widely distributed religious-themed song.

A federal jury in Los Angeles on July 29 has determined that six songwriters, including Katy Perry, and four corporations involved in the production and dissemination of Perry’s 2013 hit song "Dark Horse" infringed the 2009 Christian rap/hip-hop song titled "Joyful Noise" by copying the song’s protected elements. The jury found that the instrumental beat of the ostinato in "Joyful Noise" is protectable expression and that the song was widely enough distributed that the "Dark Horse" composers accessed and copied it. The jury reached its unanimous verdict on liability following a seven-day trial. The damages phase of the case is now underway.

"Joyful Noise" was created by Marcus Gray (known as "Flame"), Emanuel Lambert, and Chike Ojukwu in 2007. Ojukwu composed and recorded the beat that would become the musical bed for the composition "Joyful Noise," and Gray, Lambert, and Moore wrote and recorded the lyrics and hook for "Joyful Noise" over Ojukwu’s beat. A recording of "Joyful Noise" appeared on Gray’s album Our World Redeemed, which was published in March 2008. A copyright registration certification for the composition was issued on June 3, 2014.

In 2014, the "Joyful Noise" composers filed a copyright infringement suit in the Eastern District of Missouri against the composers of "Dark Horse"—Henry Russell Walter, Lukasz Gottwald, Karl Martin Sandberg, Katheryn Elizabeth Hudson (known as "Katy Perry"), Sarah Teresa Hudson, and Jordan Houston—as well as Capitol Records, LLC, WB Music Corp., Kobalt Music Publishing America, Inc., and Kasz Money, Inc. The case was transferred to the federal district court in Los Angeles in 2014. Following transfer, the defendants moved for summary judgment, arguing that the works were not similar and, in any case, they were not aware of "Joyful Noise," a work known only in the niche Christian market. In August 2018, the court denied the motion, finding that "access" to a protected work could be established by evidence of widespread distribution. While there was no evidence that Gray’s album or other recordings of "Joyful Noise" were commercially exploited, commercial success was not required for a showing of access through widespread dissemination, the court said. A video of "Joyful Noise" song was widely distributed online—receiving nearly four million views on YouTube and social media sites.

On the issue of access to "Joyful Noise," the court instructed the jury that it "may consider the characteristics and practices of the defendants in determining whether the plaintiffs have established access through widespread dissemination." But the jury also was told that "any inference of access can be rebutted by defendants by proving, by a preponderance of the evidence, that they never availed themselves of this opportunity."

The jury also found that the claimed instrumental beat of the ostinato in "Joyful Noise" was protectable expression and not "commonplace," as the defendants claimed. Finally, the jury determined that the ostinato beat #2 in "Dark Horse" was substantially similar to "Joyful Noise."

This case is No. 2:15-cv-05642-CAS-JC.

Attorneys: Daniel R. Blakey (Capes, Sokol, Goodman & Sarachan, P.C.) for Marcus Gray. James F. Bennett (Dowd Bennett LLP) for Katy Perry.

MainStory: TopStory Copyright CaliforniaNews

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