Katy Perry’s Copyright Case May Sound Familiar to These Stars07/31/2019
A federal jury’s decision on Monday that Katy Perry’s 2013 hit “Dark Horse” copied elements from a 2008 Christian rap song added her to an ignominious list: pop stars who have been successfully sued for plagiarizing another song.
Like Perry, George Harrison, Michael Bolton, Robin Thicke and Pharrell Williams all were found to have copied parts of earlier songs, while other artists, including Ed Sheeran, have settled claims out of court.
In Perry’s case, the Los Angeles jury must now decide how much she and her co-writers should pay the recording artist known as Flame for appropriating the underlying beat of “Joyful Noise.”
Perry’s team claimed that it had never heard “Joyful Noise,” while Flame’s lawyers countered that the song had been successful enough — appearing on an LP nominated for a Grammy for best rock or rap gospel album — that the “Dark Horse” writers could have heard it.
Whether a writer heard an earlier song is just one factor in music copyright law, which provides no precise definition of what constitutes infringement. There is no rule about how many notes can be copied without penalty, nor must melodies be totally identical to be considered copies.
Instead, judges usually instruct juries to decide whether two pieces of music are “substantially similar” to each other. Trials typically involve voluminous commentary from professional musicologists, who are employed by each side as expert witnesses.
The unpredictability of that system often functions as an incentive for parties to settle — one reason trials like Perry’s are relatively rare.
Here are some of the major cases that have shaped how copyright laws apply to music.
Ira Arnstein and Cole Porter
Ira Arnstein, a composer who claimed Cole Porter infringed upon at least six of his songs, wasn’t exactly the most reliable plaintiff.
According to a music copyright database from the George Washington University and Columbia University law schools, he brought five lawsuits against songwriters and publishing companies, with one judge pointing to evidence that Arnstein had “persecution mania.”
But it was the case he brought against Porter — one of America’s most iconic songwriters and the composer behind “Anything Goes” and “Kiss Me, Kate” — that set an important precedent for future music copyright cases: Substantial similarity between two pieces of music should be detected by a jury of average listeners.
Arnstein v. Porter, a federal appeals court ruling in 1946, established the two-pronged test that is still largely used to decide these cases today: whether there is sufficient evidence to prove the defendant copied the work, and if so, whether the extent of the copying constitutes “improper appropriation.”
That decision was actually a win for Arnstein, as it overruled a lower court decision throwing out the case. But Arnstein, as he usually did, lost in the end when a jury delivered a quick verdict for Porter.
The Chiffons and George Harrison
If you didn’t really mean to copy a song, can you still get in legal trouble? For the Beatles’ George Harrison, “subconsciously” plagiarizing music still had consequences.
A Federal District Court judge in Manhattan ruled in 1976 that a 1970 solo hit from Harrison, “My Sweet Lord,” was “the very same song” as one from 1963, “He’s So Fine,” written by Ronnie Mack and performed by the Chiffons.
The decision in this case introduced “subconscious” plagiarism into the music copyright lexicon. In writing the song, Harrison may not have deliberately copied “He’s So Fine,” but “knew this combination of sounds would work because it already had worked in a song his conscious mind did not remember,” the judge ruled.
Roy Orbison and the 2 Live Crew
Orbison’s music publisher, Acuff-Rose, sued the raunchy rap group the 2 Live Crew for using Orbison’s 1964 song “Oh, Pretty Woman” without authorization for its own version of the song in 1989. The group argued that its new version was a parody, which would make its recording a “fair use” of the original. The Supreme Court’s 1994 decision to overturn a lower court’s ruling cemented a legally acceptable spot for parody as an exception to federal copyright law.
Justice David H. Souter wrote in his opinion that parody, much like other forms of commentary such as criticism and news reporting that were already considered fair use, “can provide social benefit by shedding light on an earlier work, and, in the process, creating a new one.”
2 Live Crew also became famous for ushering in the “parental advisory” album warning in 1990, and though its “Pretty Woman” was released the year before, that label certainly could have stuck to it:
The Isley Brothers and Michael Bolton
Love is a wonderful thing — until singing its praises costs you millions of dollars.
The Isley Brothers in 1964 and Michael Bolton in 1991 both dropped songs titled “Love Is a Wonderful Thing,” and the infringement claim was based primarily on musical similarities in the chorus rather than lyrical ones. A federal appeals court upheld a jury’s decision that found the similarities to be the result of subconscious copying, much like in Harrison’s case — and the Supreme Court declined to review the ruling.
The $5.4 million that Bolton and Sony were ordered to pay was one of the biggest awards ever in a music copyright case, even more than the artists behind “Blurred Lines” would owe more than two decades later.
Marvin Gaye and Robin Thicke
In the case of Robin Thicke’s 2013 hit “Blurred Lines,” written with Pharrell Williams, a federal jury found the similarities between the song and “Got to Give It Up” by Marvin Gaye to be pretty straightforward.
After an initial legal dispute lasting a year and a half, and an appeals decision three years later, Gaye’s children were awarded more than $5 million.
The Gaye estate had argued that specific musical passages had been lifted, while Thicke and Williams maintained they were merely paying homage to a style of music. The court ruling has prompted extra caution from songwriters in the years since and given rise to more copyright claims.
Spirit and Led Zeppelin
Led Zeppelin was accused in a lawsuit of stealing from Spirit’s 1968 song “Taurus” for the classic opening guitar riff of “Stairway to Heaven.”
In contrast with the Led Zeppelin song, considered a landmark of rock music, many people had never heard of “Taurus,” and Led Zeppelin’s surviving members testified that they had no recollection of the song, though they did occasionally play at the same concerts as Spirit. A federal jury in Los Angeles ruled in Led Zeppelin’s favor in 2016.
Last year, however, a three-judge panel of a federal appeals court ordered a new trial, saying that the judge in Los Angeles didn’t correctly advise the jury on what musical elements can constitute copyright infringement. But in a follow-up ruling last month, the appeals court said it would take another look at the case, this time with all the appellate judges weighing in, before any new trial took place.
Marvin Gaye and Ed Sheeran
Ed Sheeran was set to go to court in September over “Thinking Out Loud,” his 2014 song that bears a resemblance to another Gaye hit, “Let’s Get It On.”
But with the pending Led Zeppelin decision and its potential to affect future cases, a federal judge in New York decided to delay the Sheeran trial until after the “Stairway to Heaven” ruling.
This is not the first copyright infringement allegation Sheeran has faced. In 2017, the singer settled a dispute over his song “Photograph” and its similarities to “Amazing,” a song by the British singer-songwriter Matt Cardle. Sheeran settled another suit last year regarding a song he wrote with Tim McGraw and Faith Hill that two Australian songwriters claimed was copied from their song, released two years earlier.
Ben Sisario contributed reporting.
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