Katy Perry wins the stupid “Dark Horse” plagiarism case. Good.

One of the most insane accusations of plagiarism we’ve seen is the accusation that Katy Perry ripped off a rapper known as Flame for her hit, “Dark Horse.” Let’s revisit the claim.

The rapper, Flame (real name: Marcus Gray), contends that there’s an eight-note keyboard figure in “Dark Horse” that was lifted directly from his 2008 track. Never mind that they’re not the same notes. It’s another note played in a similar way. You can hear the disparity in this mashup.

And let’s not forget this from 1985 from The Art of Noise.

Back to the lawsuit. Gray convinced a California jury that plagiarism did occur and won a judgment of US$2.8 million. But then the judge overturned the decision, saying that Gray’s team failed on matters of law. Those eight notes just aren’t enough to enjoy copyright protection.

Then Gray has filed an appeal saying “The district court erroneously asserted that ‘a pitch sequence … is not entitled to copyright protection’. Perhaps the district court didn’t understand that a pitch sequence is a technical term for a sequence of musical notes, ie a melody. Copyright most definitely protects original melodies and especially distinctive eight-note melodies that repeat throughout a song.”

This came despite musicologists having come to Katy’s defence.

The whole ordeal is finally over with the correct verdict being delivered by the Ninth Circuit Court. I quote from CMU:

“The Ninth Circuit appeals court in the US yesterday sided with Katy Perry in the big old ‘Dark Horse’ song theft case. The musical elements Perry’s hit has in common with earlier track ‘Joyful Noise’ were “commonplace” and therefore not protected by copyright in isolation, judges concluded. The ruling confirms that the US appeals court where many song-theft disputes end up remains cautious about over-extending copyright protection in a way that could hinder the songwriting process.”

If Gray wants to challenge this, the next stop is the Supreme Court. We’ll see.

Alan Cross

is an internationally known broadcaster, interviewer, writer, consultant, blogger and speaker. In his 40+ years in the music business, Alan has interviewed the biggest names in rock, from David Bowie and U2 to Pearl Jam and the Foo Fighters. He’s also known as a musicologist and documentarian through programs like The Ongoing History of New Music.

One thought on “Katy Perry wins the stupid “Dark Horse” plagiarism case. Good.

  • March 11, 2022 at 11:50 am
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    The biggest problem is that Flame only cares about the “theft” because of Katy Perry’s song’s popularity and the potential for payout. If it was some b-side from a lesser known artist that sounded EXACTLY the same but had no payout, you can bet your ass he wouldn’t be pursuing them legally. I get that it’s the music “business”, but as with George Harrison’s lawsuit over My Sweet Lord, the endless lawsuits are going to stifle artist’s creativity by scaring them off accidentally using someone else’s melody. Unless it’s a blatant rip-off of a well-known track that undeniably had influence on the creator—like Led Zeppelin or Abba or nSync where you would be hard pressed to say you’ve never even heard it in passing at a grocery store or a tv commercial or something—I feel that most of these cases should just be thrown out. Admittedly I’m not a big rap fan, but this is the first time I’ve heard of Flame. And probably the same is true for Katy Perry

    Reply

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