By: Rachel Moss
Six notes are all it takes to be an infringer. Recently, a jury found that popstar Katy Perry’s 2013 song, “Dark Horse,” featuring Juicy J, infringed Christian rapper Flame’s copyright on his 2008 hit, “Joyful Noise,” featuring John Reilly and Lecrae. The songs both contained ostinatos comprised of nearly the same notes. Intellectual property attorneys are now concerned the recent string of frivolous music lawsuits will heighten as artists are being allowed to copyright the “building blocks” of music. In Gray v. Perry, Flame faced an obstacle when the court explained he had the burden of proving more than a widespread dissemination of “Joyful Noise,” and that a substantial similarity existed between the songs. The “Dark Horse” issue of access was ultimately Perry’s downfall.
In Gray, the jury found the ostinato’s six notes were sufficient to establish substantial similarity between “Dark Horse” and “Joyful Noise.” However, similarity was not enough for Flame to prevail over Perry. In order to establish the presumption that Perry’s team had copied his song, Flame needed to prove that “Joyful Noise” and “Dark Horse” were substantially similar, and that “Joyful Noise” had been widely disseminated.
Flame did not have direct evidence that Perry or her co-writers had heard “Joyful Noise.” In a motion in limine, Flame asked the court to preclude the defense from arguing that his lack of direct evidence defeated his “ability to prove access.” He also wanted to prevent Perry from arguing that her team would have had to actively seek out “Joyful Noise” in order to have heard it. The court denied Flame’s motion, noting “the evidence required to show widespread dissemination will vary from case to case.”12 The court held that in proving widespread dissemination, Flame had the additional burden of demonstrating there was a reasonable possibility that Perry or one of her co-writers had heard “Joyful Noise” prior to writing “Dark Horse.” If Flame created this presumption that the defendants heard his song, the burden would then shift to Perry to “rebut that presumption through proof of independent creation.”
Because Flame had no direct evidence, he needed to rely on circumstantial evidence to demonstrate a link between his song and the defendants’ access to it. Perry attempted to argue that Flame’s dissemination of “Joyful Noise” through MySpace and YouTube was not enough to establish a reasonable possibility that she or a co-writer had heard the song.17Ultimately, the jury sided with Flame that there was a reasonable possibility that a “Dark Horse” writer had heard “Joyful Noise.”
The problem with arguing access is the difficulty of proving the standard fairly in a world of streaming, the Internet, and award show broadcasts. Because of the flexibility of the access standard, and the unpredictability of what a jury could find to be a “reasonable possibility,” lack of access may no longer be the defense it once was to copyright claims.Cases like Gray v. Perry illustrate that juries will likely not be convinced by a lack of access defense due to the reach of the Internet.
For example, Perry and Flame were both nominees at the 51st Grammy Awards. Perry was nominated for “I Kissed a Girl,” and Flame was nominated for his album, Our World: Redeemed, which featured “Joyful Noise.” There is no way of knowing if Perry may have looked up fellow nominees’ songs, or heard “Joyful Noise” at the Grammy Awards, or an afterparty. Does this amount to a reasonable possibility? Perry was also a former Christian artist, so it is possible she knew of Flame and his music, by virtue of being involved in the smaller Christian music genre. Again, does this amount to a reasonable possibility? Flame’s music was available on MySpace and YouTube – websites Perry, or her team, could have easily accessed. But so too could every American who knows how to access the Internet. Does this amount to a reasonable possibility that Perry heard “Joyful Noise?”
Gray v. Perry demonstrates that the Internet has transformed the music scene, making almost any copyrightable work accessible. Essentially, the Internet has increased the number of things any individual has a reasonable possibility of accessing. Because every major recording artist could access the Internet, one must consider whether recording artists can truly argue lack of access anymore. In Gray, Flame was handed the additional burden of proving a reasonable possibility of access, but he was able to use the capabilities of the Internet to win his case. After Gray, it will be much more difficult for artists to defend themselves from copyright infringement claims, and there is little artists can do to protect themselves when creating a new work.
The real “dark horse” in this case? An argument that allowed a Christian rapper to take down one of the world’s biggest popstars with six simple notes.
 Steve Knopper, Copyright Chaos? The infringement verdict against Katy Perry and her “Dark Horse” co-writers could lead to a new wave of lawsuits, BILLBOARD (Aug. 8, 2019), https://www.billboard.com/articles/business/8526902/copyright-dark-horse-verdict-copyright-lawsuits-katy-perry
 An ostinato is “a musical figure repeated persistently at the same pitch throughout a composition.” Ostinato, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/ostinato (last visited Sept. 30, 2019).
 Gray v. Perry, 2019 U.S. Dist. LEXIS 113807, 11 (C.D. Cal. 2019).
 Gray, 2019 U.S. Dist. LEXIS at 4–5.
 Knopper, supra note 1.
 Gray, 2019 U.S. Dist. LEXIS at 5.
 Gray, 2019 U.S. Dist. LEXIS at 3.
 Id. at 2.
12 Id. at 12.
 Id. at 5.
 Id. at 3.
17 Id. at 2.
 Knopper, supra note 1.
 Sauer, supra note 4.
 EOL Staff, Complete List of Nominees for the 51st Annual Grammy Awards, E! NEWS (Dec. 3 2008, 7:08 PM), https://www.eonline.com/news/71618/complete-list-of-nominees-for-the-51st-annual-grammy-awards.
 Blair Monroe, Remember When Katy Perry Was a Christian Music Artist?, COMPLEX (Sept. 17, 2015), https://www.complex.com/music/2015/09/looking-back-on-katy-perrys-christian-music-career.
 Knopper, supra note 1.