LOS ANGELES (CN) -An attorney for Christian hip hop artist Marcus Gray said in closing arguments of a copyright infringement trial Thursday that pop star Katy Perry swiped elements of Gray’s song from the internet for Perry’s song “Dark Horse.”
At the opening of the trial in Los Angeles, Perry – born Katheryn Elizabeth Hudson – denied plagiarizing the beat for gospel rap song “Joyful Noise” and told the 9-member jury that the song never factored in to her creative process.
Gray and his co-creators Emanuel Lambert and Chike Ojukwu said in their 2015 lawsuit that the song’s instrumental beat – which contains a repetitive musical rhythm called an ostinato – is substantially similar to a rhythm in Perry’s “Dark Horse.”
Gray’s attorney Michael Kahn of the law firm Capes Sokol told the jury Thursday that “Joyful Noise” creators don’t have to prove that Perry or her producers had “evil intent” to steal the beat, but simply that they accessed the song on the internet or at concerts.
Kahn said Perry’s team could have heard “Joyful Noise” in the past and then “subconsciously” infused the beat into Perry’s 2013 hit track.
“You may be creating a song and hear a beat in your head and think you created it,” Kahn said. “They’re trying to shove Gray’s song into a gospel music alleyway that nobody visits.”
Perry’s attorney Christine Lepera of the firm Mitchell Silberberg told jurors that the Christian rap artists were “trying to own” basic elements of music that can’t be copy written.
“You can’t copyright commonplace expression,” Lepera said, adding that the plaintiffs will have to convince the jury that the “total concept and feel” of the songs are substantially similar.
Lepera said the gospel song was not disseminated widely enough on streaming music websites to have influenced Perry’s team.
“They’ve scoured the Earth to find a connection between the song and my clients,” Lepera said. “There’s none.”
New York University musicologist Lawrence Ferrara testified Wednesday that “Dark Horse” isn’t similar to the gospel rap track and that its beat contains basic elements found in songs such as “Mary Had a Little Lamb,” which he played on a piano in court.
Kahn disagreed, telling jurors Thursday that Ferrara couldn’t find a song in his “vast music library” that contained similar elements to those in the “Joyful Noise” beat.
University of Southern California professor Jef Pearlman told Courthouse News that it doesn’t appear that Perry’s song is similar enough to “Joyful Noise” to prove she had access to the gospel rap track.
“When using the substantial similarity test, you often have a song that everyone’s heard,” said Pearlman, who has not been present at the trial. “Here, it’s a little more niche. The mere fact it’s on YouTube doesn’t tell you a lot about whether producers came across your music.”
Since Perry has filed a motion for judgment as a matter of law, Pearlman said that U.S District Judge Christina Snyder – whose denial of summary judgment in August 2018 opened the path for the jury trial – could revisit the question of copyrightability even after a jury returns a verdict.
The jury will resume deliberations Friday.