⚖️ Katy Perry's $2.78M Dark Horse verdict vacated; appeal fails

2014 to 2018: the suit that would not go away

Marcus Gray, who performs as Flame, sued Perry and her collaborators in July 2014, claiming a key ostinato (a short repeated run of notes) in "Dark Horse" came from his 2008 song "Joyful Noise," Billboard reported. The defendants maintained they had never encountered the track, nor heard of the plaintiffs, before the suit was filed.

In August 2018 a federal judge in California rejected a summary judgment bid by Perry and her fellow songwriters, The Hollywood Reporter reported. That is the court-speak for "no, a jury gets to hear this." The judge wrote that questions about how widely "Joyful Noise" circulated on YouTube and MySpace were for the jury to resolve.

July 2019: the jury

Perry took the stand on day one. When the courtroom sound system failed to play the song, Billboard reported, she offered a workaround: "I could perform it for you live." She also testified she was "mostly always listening to ... secular music anyway," even during her early Christian-pop phase, and said the 2015 Super Bowl cut of the opening beat was down to a 12-minute slot.

On July 29, 2019, after a seven-day trial, the jury found Perry liable, Billboard reported. Dr. Luke (Lukasz Gottwald), Max Martin, Cirkut, Sarah Hudson, Juicy J and Capitol Records were among the others found liable. Perry was not in court for the reading of the verdict.

The money, step by step

The three figures add up: $550,000 plus $1.3M plus $930,000 is the $2.78M that Bloomberg Law reported. Note who carried the biggest share. It was the label, not the singer.

2020: the judge changes her mind

Perry and her co-defendants filed their first appeal in October 2019, arguing no evidence supported the findings that they accessed and copied "Joyful Noise," Bloomberg Law reported. They also asked the trial court itself to overturn the verdict. On March 16, 2020, Perry's side told the judge that the Ninth Circuit's fresh ruling on Led Zeppelin's "Stairway to Heaven" meant the phrase at issue was not protected, Law360 reported.

The next day Judge Snyder agreed and vacated the verdict, Variety reported, finding it unsupported by the weight of the evidence. She leaned on the testimony of the plaintiffs' own musicologist, Todd Decker.

"A relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection."

Judge Christina A. Snyder, ruling quoted by Variety, March 2020

Christine Lepera, lead defense attorney at the trial, called it a victory for music creators and said, "The creators of 'Dark Horse' stand vindicated," per Variety.

2022: the appeals court closes the door

Gray appealed. On March 10, 2022, a three-judge panel of the Ninth Circuit upheld the vacatur, Billboard reported, saying the overlapping portion was "really nothing more than a two-note snippet of a descending minor scale, with some notes repeated."

"The portion of the “Joyful Noise” ostinato that overlaps with the “Dark Horse” ostinato consists of a manifestly conventional arrangement of musical building blocks."

Ninth Circuit opinion, quoted by Billboard, March 10, 2022

Gray's attorney Michael A. Kahn told Billboard the ruling ran contrary to famous simple openings such as "Satisfaction" and Beethoven's Fifth, and said, "We are considering our options." Billboard noted that, barring an unlikely trip to the Supreme Court, this was the end of the road for Gray's claims. Lepera, representing Capitol Records, said she and her client were "very pleased." Attorneys for Perry herself did not return Billboard's request for comment.

Net result on the record: a $2.78M jury award that lasted from August 2019 to March 2020 on paper, and never reached anyone's bank account as far as these documents show. Mr Scandal calls that an expensive eight notes, briefly.