Marcus 'Flame' Gray vs Katy Perry (2014)

Flame, a rapper says Perry ripped off his song, but an appeals court ruled that he was seeking an "improper monopoly" over basic musical elements.

Picture from Katy Perry's Dark Horse music video


Source : Billboard Legal News

The top hit 'Dark Horse' by Katy Perry, released in 2014, was claimed to rip off a Christian rapper's song 'Joyful Noise'. The rapper sued Perry over accusations she had lifted a key 'ostinato' (a short series of notes that is repeated throughout a song) from his song and used it prominently in 'Dark Horse'.

The case initially went well for Gray, who uses the stage name Flame, resulting a $2.8 million jury verdict against Perry in July 2019. But then came an influential ruling on 'Stairway to Heaven', which imposed key new limits on how copyrights cover basic aspects of music.

Afterwards, Perry's verdict case was overturned in 2020. It was claimed that the 'ostinato' Perry was alleged copying was too simple for copyright protection. Hence by a 3-to-0 vote, the US Court of Appeals for the Ninth Circuit upheld that decision on Thursday, saying a decision against Perry would have dangerous consequences for future creativity.

"The portion of the 'Joyful Noise' ostinato that overlaps with 'Dark Horse' ostinato consists of a manifestly conventional arrangement of musical building blocks. Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself." wrote the appeals court.

The appeals said it was clear that the material Perry allegedly copied was too common to be copyrighted. The court stated that it was "nothing more than a two-note snippet of a descending minor scale, with some notes repeated.". The court also noted that same sequence appears in "Merrily We Roll Along" and "Jolly Old Saint Nicholas" and even said they must be free for future songwriters to use.

The court also added, "Just as films often rely on tropes to tell a compelling story, music uses standard tools to build and resolve dramatic tension".


Personal comment :

Any ideas and products revolving creativity could be really tricky, as creativity requires a lot of researches, samples and references in order for us to create something new. In this case, whether Katy Perry's production crews (composers to be specific) may have or may have never heard of Flame's 'Joyful Noise' before, may have coincidentally created an almost same idea in their artwork. This is because it is inevitable for creative ideas to coincide together sometimes, resulting to various claims on copying and disputes regarding its originality.

Therefore, my personal safe move for this issue would probably be to always go back to basics. We can create anything from the basics, with a lot of influences from other references, however we should always be able to protect our works if we majorly create something from the basics as the basics will be everyone's starting point when creating something new. This method is exactly how Perry's case was overturned to her side when the court decided that the similar music elements stemmed from the most basic music composing. Therefore, having a solid stem will definitely aid us in protecting our works in the future.

-Fatin Farlisa-

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