The $2.8 million in damages that Katy Perry and those involved in the production of the song “Dark Horse” must pay to the Christian rapper Marcus Gray (AKA Flame) for infringing on the latter’s 2009 song “Joyful Noise” is a high-profile example of the violations of economic and creative liberty by private actors made possible by our copyright laws.
Even leaving aside the problematic conflation of the natural rights case for property rights in physical goods versus those in songs, books, and other ideal objects, the outcome of this decision should concern all those who believe in the right to use the fruits of their intellectual labor.
There’s more than a passing similarity when comparing the infringing part of “Dark Horse” to “Joyful Noise.” After some audio manipulation, they sound almost identical. That being said, the technique in question is a relatively small part of both songs; substantial creative effort went into the production of “Dark Horse” beyond the portion that is the subject of the infringement claim.
The notes, key, and beats per minute in the two portions, in addition to being different, are both based on relatively common musical forms, as Charlie Harding of Vox’s Switched on Pop podcast explained. Whether the defendants independently produced the tune or plagiarized (inadvertently or intentionally), shouldn’t matter if the content is a fundamental musical building block.
Even if the selection weren’t a simple form, borrowing is ubiquitous in artistic works and current policy must be changed to recognize this fact. For example, the title crawl from Star Wars is virtually identical to the one from the Flash Gordon Conquers the Universe serials. We are all consumers of ideas, but only a few of us will go on to create new ones.
While Gray presents himself as a sympathetic victim of “theft,” and the outcome of this decision seems like a win for intellectual property rights and the little guy, I have none for him and it isn’t. This lawsuit seems less like an effort to right a wrong and more like a microcosm of the ways private actors can use the force of law to harm others.
First, a multi-million dollar settlement goes above and beyond what’s necessary to soothe a wounded ego: a public acknowledgement on Perry’s part would have sufficed. The size of the damages makes Gray’s claims seem more like an attempt to get his cut of the loot (or at least a cut of the loot.)
Even from a purely financial perspective, Gray’s case is weak. The effect (or lack thereof) on the market value of the original work to the rightsholder is one of the criterion used to determine fair use. Find me the person who would have listened to “Joyful Noise” but for the existence of “Dark Horse.” If anything, the attention paid to the case alone has been a boon for him.
Second, Gray complained that his reputation as a Christian artist had been harmed by “anti-Christian witchcraft, paganism, black magic, and Illuminati imagery” in the song’s music video. Gray sounds less like a victim of “theft” and more like a censor, in line with the intent of early copyright laws.
The absurdity of the “Dark Horse” case shows just how far our copyright system has fallen. From the founding of our Republic until the early 20th century, copyright laws only restricted the most blatant forms of copying—even translations weren’t considered infringing. We have gone from a system that protected specific works in their entirety to one where multi-million dollar penalties can be applied to the use of a basic musical form.
For Perry, alone worth $330 million, and Capitol Records, $2.8 million is a drop in the bucket. But this particular ruling will have significant implications for other infringement suits currently in the works.
Take the infringement case against Led Zeppelin by the estate of Randy Wolfe, the deceased member of the band Spirit. Applying the same low bar for infringement that has emerged from the “Dark Horse” case, Zeppelin will almost certainly be found guilty of infringement, if they aren’t saved by technicalities of older copyright laws, as the Justice Department argues.
What about those of us who aren’t multi-millionaire artists? First, anyone can be sued for copyright infringement for up to $150,000 per count. As long as our current copyright policies grant wide-reaching monopoly rights, and if the outcome of the “Dark Horse” case is the standard by which infringement is judged, anyone who uses something resembling a copyrighted work in producing something new and creative could be on the chopping block.
New legislation, the CASE Act, which would establish a copyright small claims court, would make it easier to troll infringers than ever before. Small claims courts make sense in legal matters where non-lawyers could adequately represent themselves, but copyright law is incredibly complicated. Can we expect someone who creates a meme to understand the nuances of fair use? If it took years of litigation to determine whether a small part of a song was considered infringing, what hope does the layperson who does the same have?
Using a low bar to determine whether or not someone has violated another’s copy (read: monopoly) rights will result in a far greater infringement on the individual right to free expression than even the most blatant forms of copyright infringement ever could.