Katy Perry was unanimously convicted by jury of copying Christian rapper Flame on the bass line of his 2008 song “Joyful Noise” with Perry’s 2013 hit, “Dark Horse,” on July 29, and had to pay $2.87 million in damages.
The dispute started when Flame filed a complaint in 2014, accusing Perry of copying the baseline and tarnishing Flame’s song and reputation with “anti-Christian witchcraft, paganism, black magic, and Illuminati imagery” in Perry’s “Dark Horse.”
At first listen, the bass lines of the two songs do seem similar. However, the problems with this claim seeps deeper than the notes themselves. Here are samples of Dark Horse and Joyful Noise.
The descending background notes are what is called an ostinato: a melodic fragment that is repeated over and over that supports the main melody. They sound similar in the notes but different in timbre, or tone quality.
“Joyful Noise” on the one hand, has a synthesizer with pitch glides, or portamentos. This causes the constant pitch sliding and a slightly pingier sound. “Dark Horse,” on the other hand, has a more airy kind of synth beat. This already contradicts Flame’s comment, which said that the timbre was the same.
There is another glaring flaw, however, with Flame’s accusation. In this lawsuit, Flame argued that a scale, one of the basic units of music, is copyrightable. Because music notes are like a language, when one owns a sequence of notes, it is like copyrighting “I love you.” For example, Hot Cross Buns is almost entirely made out of scales.
The untrue claims made by Flame and his lawyers inevitably swayed an inexperienced group of non-musician jurors. Indeed, that claim is untrue because there are only so many chords and notes that are usable in a pop music setting.The precedent is extremely inhibiting for songwriters. This is because some notes are dissonant with each other and are not the type of intervals that are preferred in a pop song. For example, Rite of Spring harmonies cannot be used.
Todd Decker, a musicology professor at Washington University in Saint Louis, testified in court for Flame, saying, “The descending melodies of both ostinatos are unique. I have not seen another piece that descends in the way these two do.”
This statement is completely false because there are plenty of songs that descend just like this, such as the theme to the 1954 version of “Godzilla”.
The Flame lawsuit is so specific in its claim that it sets a dangerous example for other musicians and songwriters because it tries to lay a claim on such a generic thing as a descending scale.
It has already led to a more ludicrous, far-reaching claim against Lady Gaga’s “Shallow” for using the same three notes in “I’m fallin”, a lyric in “Shallow” compared to the beginning of the accuser’s song. The accuser, Steve Ronsen, stated that he invented the three note sequence, even though it was used in countless numbers of songs before Ronsen wrote his.
The Katy Perry lawsuit in particular sets up a dangerous and uncertain future for emerging musicians and singers. It will likely bring constant clashes between copyright as artists try to own the fundamental parts of music itself. When these types of lawsuits occur, it is important to go beneath the surface to fully understand what is going on.
What do you think about this lawsuit? Tell us in the comments below.