Pop megastar Katy Perry has lost a copyright lawsuit based around her 2013 single 'Dark Horse'. Marcus Gray, a Christian rapper who releases music under the moniker Flame, claimed that 'Dark Horse' uses the same instrumental elements as his song 'Joyful Noise' from 2009. The federal jury agreed, ruling that 'Dark Horse' infringes on Gray's work.
In court, Perry, producer Dr. Luke, and the four other producers and songwriters who worked on 'Dark Horse' claimed ignorance, saying they'd never heard 'Joyful Noise' before. And it's pretty easy to believe this could be true. Coincidences happen. Pop is a genre that thrives on simplicity, and the 'Dark Horse' instrumental is a skeletal hook. On the other hand, the similarity is striking.
So did Katy Perry copy 'Joyful Noise'? This video might help you decide for yourself:
The central question facing us is, 'What uniquely identifies a song?' Or to put it another way, 'What makes a song that song that can differentiate it from others?'
A monumental shift in thinking around copyright has been taking place in recent years. It began with Robin Thicke's 'Blurred Lines' case in 2015. Lawyers used to concentrate on lyrics and melody to decide this. Now more nebulous factors such as rhythm and 'feel' are on the table; 'Blurred Lines' was found to have significantly infringed the “musical style” of Marvin Gaye's 'Got To Give It Up', and was charged $3.5 million for it.
It's uncomfortable, because music isn't made in a vacuum. There are always artists who take in influences and make greater success from it. Kurt Cobain freely admitted to lifting Nirvana's aesthetic from the Pixies, for example. In genres like jazz, folk, or hip-hop, referencing other works is a way of showing your legitimacy, and reinterpreting your own culture in real time; Drake claimed the same thing about Jamaican dancehall music in a dispute over 'Hotline Bling'. Homage, influence and even intentional borrowing have always been commonplace songwriting conventions.
Could this backfire?
There's a layer of bizarre irony at work in this court case being brought by a Christian rapper. The world of 'contemporary Christian music' (CCM) is an active and still-burgeoning industry in the US, where it has a storied history of being wildly derivative. That might not apply to Flame's work specifically, but the case can feel a little like a stone being thrown from inside a towering glass house.
In the post-'Blurred Lines' world, a lawsuit can hinge on an instrumental hook – something as simple as a drum beat and a descending synth line, as it does in the 'Joyful Noise' case. In the CCM industry, this is a sleeping giant of a threat, since countless artists have made careers from work that sounds 'kind of' like their peers – and that's not to mention those who have literally replicated pop songs wholesale with 'Christian' lyrics. It's hard to imagine what legal defence could even stand up in such cases, unless they manage to claim a parody clause.
Perhaps there is a good, and a more generous way to look at all this. After all, is it right for CCM artists to make careers by exploiting the work of other artists? Surely Christians should be eager to give credit (in both the figurative and the literal sense) where it's due?
Some top-selling artists have now taken a preemptive approach to copyright law. Beyoncé, Bruno Mars, Sam Smith and others have piled up their songwriting contribution credits as a means of covering all eventualities. After 'Blurred Lines', Mark Ronson quietly added five more songwriting contributors to 'Uptown Funk' before any controversy could arise.
This signifies that the biggest artists in the world recognise the new threat, but it also suggests a more charitable way to approach creativity. Maybe those who are reaping the biggest rewards can learn to share them more widely, in deference and respect to those who have built the culture from which they are profiting. Or maybe this is just a miserly industry tightening its grip on its assets. I can only hope it's the former.
Chris Donald is a musician, designer, and part of Christian arts network Sputnik