Katy Perry Testifies in ‘Dark Horse’ Copyright Trial

LOS ANGELES (CN) – Pop star Katy Perry told a federal jury Thursday at the opening of a copyright infringement trial that she never heard the Christian rap song “Joyful Noise” and it never factored into the creative process for her hit song “Dark Horse.”

Katy Perry performs on stage at the “Witness: The Tour” concert at the Staples Center in Los Angeles. (Photo by Willy Sanjuan/Invision/AP, File)

Wearing a sharp, key lime green suit on the witness stand in a Los Angeles courtroom, Perry – who created Christian pop music as a teenager – told jurors she plays a direct, intimate role in creating songs and music videos.

“My goal has always been to be a messenger of authenticity and to share that in three-minute songs,” said Perry, who was born Katheryn Elizabeth Hudson in Santa Barbara, California.

But Christian hip-hop artist Marcus Gray, who performs as Flame, said in his 2015 lawsuit that Perry copied the beat from his song “Joyful Noise” without permission and tarnished the piece by adding images of witchcraft and paganism in the music video for “Dark Horse.”

Gray’s attorney Michael Kahn of the law firm Capes Sokol said in opening statements that before writing “Dark Horse” in 2013, Perry’s team came across the gospel song on MySpace or at offline venues where it was performed.

“This case is about taking without permission,” Kahn said, adding his clients won’t have to prove Perry had “direct access” to the gospel track, only that there’s circumstantial evidence that access existed.

“We don’t intend to prove evil intent,” Kahn told the 9-member jury. “We’re not accusing anyone of bad faith.”

The gospel rap track’s co-creators Emanuel Lambert, aka Da Truth, and Chike Ojukwu, the producer of the song’s instrumental beat, are co-plaintiffs and appeared in the courtroom Thursday.

The artists claim their song had 4 million views on YouTube, 1 million on MySpace and that it received both a Dove Award and a Grammy nomination.

But Perry’s attorney Christine Lepera of the firm Mitchell Silberberg told jurors the gospel song was not disseminated widely enough on already packed streaming music websites to have influenced Perry’s team.

“Plaintiff’s [online] views are miniscule and they can’t tie any defendants to listening to any of their songs,” Lepera said. “They’re denigrating defendants by saying they need to go copy someone, as if they’re not proud enough of their work.”

On the witness stand, Perry said she used MySpace early in her career to promote her music.

Lepera argued in a pretrial brief that “Joyful Noise” is a derivative work since the beat was produced separately by Ojukwu and that its copyright does not extend to the beat itself.

But attorneys for the gospel artists argued ahead of trial that Perry’s team waived their right to raise copyright challenges by failing to ask the Registrar of Copyrights to advise the court on the claim.

The two-week trial will play out before U.S District Judge Christina Snyder, denial of summary judgment in August 2018 opened the path for the jury to decide if an ostinato – a type of repeating, musical note – in Perry’s song is substantially similar to the one created by Ojukwu for the gospel rap track.

Lepera closed her argument by saying the beat in question contains musical elements that are too common across musical genres to be protected by copyright.

“[Plaintiffs] can’t copyright common building blocks of music,” Lepera told jurors. “They can’t monopolize it and there is no evidence that [Perry’s team] couldn’t create the beat on their own.”

At one point during the proceedings, Perry’s attorneys had trouble playing “Dark Horse” for the jurors over the courtroom speakers, leading to a long, awkward pause.

“I could perform it for you live,” Perry said to laughter.

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