Katy Perry defeats appeal in $2.8m Dark Horse copyright case

Katy Perry no longer has to pay $2.8 million to a rapper who accused her of plagiarising part of one of his songs for her huge 2013 hit, Dark Horse.

Following a lengthy legal battle, a federal appeals court decided on Thursday that the US pop star and her team are not liable to pay out the sum (about £2.1 million) to hip-hop artist Flame, whose real name is Marcus Gray.

Gray sued Perry in 2014, claiming she had ripped off an eight-note beat from his Christian rap track Joyful Noise.

In 2019, a Los Angeles jury agreed and awarded Flame and two other plaintiffs $2.79 million, including $550,000 from Perry and $1.29 million from her label Capitol Records, part of Universal Music Group.

However, a judge overturned the verdict in 2020, saying Perry did not infringe any independently protectable musical elements.

Now, the appeals court has agreed that the jury verdict should not stand and Gray does not deserve damages for copyright infringement.

The eight-note pattern in Dark Horse, known as an ostinato, consisted “entirely of commonplace musical elements” that lacked the “quantum of originality” needed for copyright protection, the court said.

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Michael Kahn, a lawyer for the plaintiffs, said his clients were considering their legal options.

Not granting Joyful Noise protection “runs contrary to a series of simple and clearly distinctive eight-note opening melodies” as in Dave Brubeck’s Take Five, the Rolling Stones’ Satisfaction and Beethoven’s Fifth Symphony, he said.

However, unless Gray takes the case to the US Supreme Court, this ruling could bring the eight-year legal battle to a close.

The Ed Sheeran case

Copyright claims are a common occurrence in the music industry – with British star Ed Sheeran currently facing his own trial in the High Court.

Sheeran, along with songwriters Steve Mac and Johnny McDaid, has been accused of ripping off parts of Sami Switch’s 2015 track Oh Why on his 2017 mega hit Shape Of You.

Other pop stars including Lizzo, Dua Lipa and Shakira have also faced copying accusations.

Led Zeppelin were embroiled in a lengthy battle over a claim the 1971 mega-hit Stairway To Heaven violated the copyright of a 1968 song called Taurus by the band Spirit, which eventually ended in 2020 when the Supreme Court refused to take up the case.

Robin Thicke and Pharrell Williams were also accused of copying Marvin Gaye’s Got To Give It Up for his hit Blurred Lines, and eventually were ordered to pay out $5 million (£3.8 million).

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In 2021, Elvis Costello defended teenage star Olivia Rodrigo over an accusation by a Twitter that she copied one of his songs.

“This is fine by me,” Costello replied. “It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy.”