Katy Perry, her label and her “Dark Horse” collaborators have filed an appeal of the July decision that found them liable to the tune of $2.78 million for plagiarizing elements of their 2013 hit from a 2008 Christian rap song.
In documents filed Oct. 9, the defendants are asking the California courts to overturn or at least grant a new trial on “the legally unsupportable jury verdicts in this music copyright infringement case that are widely recognized within the music industry — and beyond — as a grave miscarriage of justice. …The erroneous verdicts in this case and the precedent established thereby present serious harm to music creators and to the music industry as a whole.”
Part of Perry’s appeal relies on the relative obscurity of rapper Michael Gray’s supposedly plagiarized track. It maintains that nearly all the original play for “Joyful Noise” was in religious venues and goes so far as to suggest that the original song may not have sold a single verifiable copy: “Plaintiffs did not offer proof of one single digital or brick-and-mortar sale of ‘Joyful Noise’ or (the album) ‘Our World Redeemed‘ and admitted that they have no such evidence.”
The brief continues, “No reasonable factfinder could have concluded that ‘Joyful Noise’ was so well-known that it could be reasonably inferred that Defendants heard it, particularly in this digital age of content overload, with billions of videos and songs available to users with trillions of streams. … The few million views of ‘Joyful Noise’ on the Internet presented by Plaintiffs, over a period of five years, equals an undisputed ‘drop in the bucket’ in modern day view count statistics — and can hardly constitute widespread dissemination… Plaintiffs adduced no evidence of any sales and no documentary evidence of any radio or television play, or of actual performances of ‘Joyful Noise.’ … Plaintiffs had no proof that any of the ‘Dark Horse’ writers searched for Christian rap on YouTube or Myspace, as was Plaintiffs’ burden.”
On the actual musical merits, the appeal goes deep into the weeds on the similarities and differences between the music and rhythm in the two tracks, with details it insists the jury ignored, along the lines of: “The pitch on Beat 7 of the ostinato in ‘Joyful Noise’ is a B, while the pitch on Beat 7 of Ostinato 2 in ‘Dark Horse’ is an A. The pitch on Beat 8 of the ostinato in ‘Joyful Noise’ is an A or an F, depending on the iteration. The pitch on Beat 8 of Ostinato 2 in ‘Dark Horse’ is an E…”
Found liable in the original judgment besides Perry were Capitol Records, Warner Bros. Music Corporation, Kobalt Publishing and Kasz Money, along with producers and songwriters Dr. Luke, Max Martin, Cirkut, Sarah Hudson and Juicy J.