The Small Print
IN THIS PHOTO: Katy Perry copied her 2013 song, Dark Horse, from a Christian Rap song, Joyful Noise by Flame, a U.S. court has ruled/PHOTO CREDIT: Getty Images
Are Music Copyright Laws Too Stringent?
THIS seems to be something that crops up…
PHOTO CREDIT: @pichler_sebastian/Unsplash
more than one would expect. At a time when pretty much every sound, sub-genre has been explored, exploited and hollowed, is it becoming harder to write something truly original?! There have been a few copyright issues through the years where artists have been sued because their song bears similarities to an existing one. Ed Sheeran is one of the more recent cases where, again, someone has noticed something that rings bells – even if, in the case of Sheeran (Thinking Out Loud) being similar to Marvin Gaye (Let’s Get It On), it is hardly glaring and one suspects that the duplication was unintentional. It has not been long since the last big Pop copyright case – now another big artist, Katy Perry, is in trouble (the jury ruled against Perry after a week-long trial). As The Guardian reports, her song, Dark Horse, is very close to Joyful Noise. The track Perry is accused of borrowing from, I must admit, is not one I am aware of. The article shed more light:
“Katy Perry will pay damages to a Christian rapper after a jury in California found that her song Dark Horse plagiarised one of his tracks.
In Marcus Gray, who records as Flame, and co-writers Emanuel Lambert and Chike Ojukwu of his 2008 track Joyful Noise sued Perry and five other producers and songwriters who worked on Dark Horse. Among those sued include Dr Luke and Max Martin, and rapper Juicy J.
Gray’s lawyers argued that the beat of Dark Horse had been copied from Joyful Noise, but Perry and her co-writers claimed they had never heard the track, and were not aware of Gray. But Gray’s lawyer successfully argued that Joyful Noise was a widely known song, pointing to its millions of plays on YouTube and Spotify. “They’re trying to shove Mr Gray into some gospel music alleyway that no one ever visits,” argued Michael A Kahn.
Perry’s lawyer, Christine Lepera, countered by saying Gray and his team were “trying to own basic building blocks of music, the alphabet of music that should be available to everyone”.
I suspect that, around the world, there are many cases of artists who have a song that is quite familiar; one that sounds like another but there is never an intention to steal or rip someone off. I guess there have been cases where artists have just hooked a song, melody or chorus and assumed they could get away with it. There are a few things that worry me about putting Katy Perry in the firing line. For a start, the song was released in 2013 on her album, Prism. It has been six years since that album was released so it makes me wonder why it has taken so long to raise this case; why has someone just now decided to take legal action? Also, Katy Perry is just one of the writers of Dark Horse.
Like most Pop these days, there is a veritable army of other writers and producers. On Dark Horse, Jordan Houston, Lukasz Gottwald; Sarah Hudson, Max Martin and Henry Walter are listed as writers. I am pretty sure the record label (Capitol) will bear the brunt of the costs but one knows that Perry herself will have to pay out quite a lot if it goes that far. It seems a little cruel putting all the spotlight on an artist who, I suspect, had very little to do to with the music and sound – she would have been more responsible for the lyrics. I do think producers such as Dr. Luke would have helped more crafting the composition – are they going to face scrutiny and legal issues? If you literally use someone else’s music in one of your songs, sample-like, and do not clear it with the original artist then that is fair enough. My suspicion is that Katy Perry has not – as she claims – heard Joyful Noise. I have never come across the song and, whilst Flame’s creator claims most people have heard of the song, that does not mean Perry would have and, if she did, consciously copied any of it. I can see where artists are coming from when they claim there has been copyright infringement. If you work hard on a song and someone else profits from, technically, your work then that is egregious and unfair.
PHOTO CREDIT: @leecampbell/Unsplash
There is this world of difference from piracy and intent and an accidental similarity. A lot of cases where artists have been taken to court – accused of plagiarism – have been dismissed but a lot of them have resulted in big payouts and damages. Look at a lot of classic tracks and older numbers and you can hear lines and expressions from old Blues records; hooks that are a very familiar and, in some cases, there is deliberate thievery – who can listen to Oasis’ Cigarettes and Alcohol and, when witnessing the riff, be reminded of T.Rex’s (Bang a Gong) Get It On?! I do think there should be a statute of limitations whereby estates and artists can only take legal action for a certain time after the second song has come out. Katy Perry’s Dark Horses is six and it seems, as I say, baffling action is happening in 2019. There are so many different songs being created daily and I can appreciate how hard it is for songwriters to create something unique and fresh. I know there is not this big lab where record labels and lawyers are checking every song that comes up and monitoring any cases of similarity and copycatting but I do think there needs to be a line drawn between obvious and explicit plagiarism and something quite minor. Listening to Dark Horse and it is not like you are hearing a rewrite of Joyful Noise.
Also, rather than attack someone and ask for a big payout, how about asking the artist of crediting a songwriter? Maybe having Katy Perry and team note Flame in the credits for Dark Horse or give a percentage of future proceeds? Another point to note is that, in many cases, the accused songwriter is using a common building block or sequence of notes rather than lifting a melody or sequence of notes. If there is a common series of notes that many songwriters use, is that the same as someone listening to a song and using a lot of it for commercial gain? This article from Forbes explains in more depth:
“In past decades, you didn’t see much of this. Bruce Springsteen didn’t sue John Cafferty because On the Dark Side had a Bruce vibe; Van Morrison didn’t sue Bruce because Spirit in the Night had a Van vibe; Curtis Mayfield didn’t sue Van because Crazy Love cut a Curtis impression; and so on.
Today, anything goes when it comes to music copyright cases and there’s big money in it. A recent annual report says global recorded music revenue in 2018 is up 9.7% over 2017 figures, for a fourth consecutive year of hikes.
Songwriters used to feel secure standing on the shoulders of giants who inspired them. Scientists often share the sentiment. Isaac Newton said in 1675 that he was “standing on the shoulders of Giants.” That wasn’t original. Five centuries earlier, Bernard of Chartres said we were all “dwarfs perched on the shoulders of giants … [so we] see more and further than our predecessors.”
Now some giants are shrugging, and some pop stars are falling off their shoulders and getting shaken upside down until money pours out.
It seems hard for music litigators to convince jury members—often with no musical background—that while some tone-and-rhythm sequences are original enough to warrant copyright protection, others are simply musical building blocks or “vibes” that don’t belong to anyone.
One famous recent case went the other way. A jury in the Led Zeppelin Stairway to Heaven case, Skidmore v. Led Zeppelin, threw out a song claim based largely on a simple motif, but one far more complex than the line in Joyful Noise. That jury found that an A minor chord and a descending bass line, common in many compositions going back to Bach and before, were not copyrightable. A Ninth Circuit three-judge appellate panel ordered a new trial, finding an “erroneous jury instruction.” But last June, an 11-judge panel decided to take another look and listen. That decision is pending”.
One can commend songwriters for protecting their work and sending a message to others: it is not right to steal material and, at the very least, ask for permission. Also, in many of these legal cases, it is big hits that are highlighted rather than underground songs. At a time when we can access most songs recorded, is money to main motivation for those who take legal action?
I can appreciate, too, an original songwriter seeing an artist like Katy Perry accusing millions of streams and the money that must generate. Is the main motivation for suing to get a slice of that pie or is it, as it should be, to do with the music alone? It is a tricky debate to wade in to but I think we will see a lot more high-profile cases come up. It is unavoidable. Artists who are sued do recover and carry on but there are financial and psychological implications. I think there needs to be greater definition going forward so that artists who might risk facing a court battle can avoid that eventuality. There is a difference between using a common sequence or building block and stealing many notes or a big chunk of a song. I do think there needs to be significant similarities between tracks and, in a lot of these cases, that is not the reality. This will rumble on but it is disheartening to see artists face accusation and, maybe, there will be rules and laws brought in that force songwriters and producers to consult a database or musical lawyer before they release tracks. Let’s hope it does not come to that because, largely, these big cases are rare; but it does raise questions as to what genuinely constitutes copyright infringement and whether artists intend to defraud. A Dark Horse has been punished and, sadly, turned a Joyful Noise into an…
PHOTO CREDIT: Getty Images