Written by attorney Steve C. Vondran

Elements of a Music Infringement Case in California - The Katy Perry Verdict

A recent case just came down following a jury verdict in California in which a unanimous jury (9-0) decided that artist Katy Perry (and others involved in the song "Dark Horse") were liable for infringing on the music of another song ("Joyful Noise") created by a Christian rapper Marcus Gray ("Flame"). The trial was bifurcated with the liability portion of the trial first, and then the jury rendered damages over 2 MILLION DOLLARS. Katy Perry's portion is over 500k. This just goes to show the importance of creating your own music. I would assume this verdict may be appealed but we will see. Some important things I got out of this case:

  1. Create your own work (copying even tiny parts of another's song, music, lyrics, beats, etc. could lead to claims of music infringement.

  2. We have previously discussed the Madonna case where "de minimis' use was determined to be lawful and non-infringing. In this case, the Court did not find de minimis use. But that ruling still seems in tact.

  3. Don't think that just because someone is a lesser known artist that no one will know. In this case, Defendants tried to claim they never heard of Marcus Gray or his music, alluding to an "independent creation" defense which the jury rejected. The Court held that since Marcus Gray had over two million views on his song, that this was enough evidence of "widespread use" such that "access" to the copyrighted work (a requirement to show infringement) was inferred.

  4. A trained ear (such as a musicologist) and even the jury, were able to determine that the beats at issue were "substantially similar"), another requirement.

  5. The case took over 4 years to get to a jury. It shows the battle a music Plaintiff needs to be prepared to fight in some cases, especially against the bigger artists and record companies who are likely to be more prone to engage in denial and try to turn the case into a charade (in this case, Katy Perry did not even show up for the verdict). Also, she offered to perform the song LIVE in court when there were technical difficulties in getting the two songs to play.

So, I think music infringement cases are alive and well in the 9th Circuit. Artists, musicians, and engineers, and record labels need to work hard to ensure independent creation defense will be available.

Additional resources provided by the author

Here are a few other music law links that may be helpful in looking at this case.

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