Copyrighting the 'Building Blocks' of Music? Why the Katy Perry Case Alarms Producers

After a seven-day trial, last week’s copyright infringement ruling against Katy Perry came down to four notes from her 2013 hit, “Dark Horse.”

On July 29, a jury ruled in favor of Christian rapper Flame, a.k.a. Marcus Gray, who says that Perry and her collaborators Juicy J, Dr. Luke, Max Martin, Cirkut and Sarah Hudson lifted the looped synth melody from Flame’s 2008 song “Joyful Noise.” Perry, the co-writers and her label, Capitol, now have to pay out $2.8 million dollars in damages. (Update, Sept. 23, 2021: Although Flame initially prevailed in court, a judge tossed the verdict against Perry in 2020.)

The decision prompted outcries from musicologists, intellectual property experts and music producers, who argue that it sets a dangerous precedent, encouraging self-censorship among composers and more lawsuits over basic similarities. Experts say that the case illuminates the discrepancies between the way copyright law is enforced and the real-life practices of pop music producers, who rely on derivative motifs and genre conventions to make hits.

Who gets to own basic songwriting elements?

The issue isn’t that “Joyful Noise” or “Dark Horse” are particularly original: both fuse generic elements of pop, trap and EDM—a style that’s come to define the sound of the 2010s. Though in different keys and tempos, both songs feature a descending minor-key progression with evenly spaced B and C notes.

This four-note progression is as basic as the major-scale power-chord riffs in punk, and Perry’s supporters argue that standard songwriting tropes like these should stay in the public domain. Indeed, well-known works like the Stranger Things theme song and LL Cool J’s “Doin’ It (Remix)” use descending minor-scale loops similar to those in “Dark Horse” and “Joyful Noise.”

In the trial’s closing arguments, Perry’s lawyer Christine Lepera said that the riffs in “Dark Horse” and “Joyful Noise” are so generic that trying to copyright them would be like “trying to own basic building blocks of music, the alphabet of music that should be available to everyone.” Some music producers now fear that the Perry lawsuit lowers the bar for what qualifies as copyright infringement, leaving their industry vulnerable to predatory lawsuits.

The ruling surprised Bay Area producer Wax Roof, whose credits include songs by Rexx Life Raj, Jay Prince and Caleborate. He says the riffs of “Dark Horse” and “Joyful Noise” are so simple, they could’ve been made by a machine. “If you plug that into any sequence generator or arpeggiator in a synth, it’s going to spit that back out at you,” says Wax Roof. “Beyond electronic musical instrument programming, those type of exercises are the foundations of classical theory training. When I heard [that melody], it sounded like a minor scale learning exercise.”

“There are so many differences in both songs that it seems like a very far-fetched cry for money,” says L.A. producer davOmakesbeats, the founder of Molly House Records whose production credits include tracks by Cakes Da Killa and bbymutha.

The Seshen’s Akiyoshi Ehara, who produces for rapper Mahawam and pop duo vverewolf, was similarly taken aback. “When I heard the two songs, there were similarities, but they were on such a basic level that I don’t think it should be argued that it was lifted,” he says. “In the realm of pop music and diatonic chord progressions, there’s only so much you can do without sounding like existing songs anyways.”

By their definition, popular musical genres are derivative, with composers building on their predecessors’ legacies as well as current trends. In recording sessions, it’s commonplace for major label artists to play other songs as references with the goal of recreating a certain feel, tone or frequency.

“When people ask me for a certain vibe, I try to create my version of that,” says Pinole producer P-Lo, who has made beats for chart-topping rappers Yo Gotti and Wiz Khalifa. “There are only so many notes or chord progressions or bass lines that can be played.”

“As a creative, you’re always straddling that line between the familiar and the unknown, and that’s where you find new dots to connect and new frontiers of creativity,” says Wax Roof. “If we’re not allowed to access the known, and we’re only allowed to blindly explore the unknown, there’s going to be a huge consequence on quality as a result of that.”

The disconnect between music production and copyright law

While pop and rap’s detractors may be tempted to argue that producers should simply be more original, that line of reasoning runs counter to the entire history of music’s evolution—not just those genres. “You could go back to the days of Palestrina, certainly Bach and Handel, to the baroque period, the classical period with Mozart and Beethoven and, even more recently, with Rachmaninoff,” explains intellectual property lawyer J. Michael Keyes of the firm Dorsey & Whitney LLP. “They all copied from preexisting works and created fantastic works as a result. Why don’t we embrace that reality?”

Keyes points to flaws in the United States’ copyright system, especially when it comes to music. Just as recipes or short phrases aren’t protected by copyright, basic musical conventions also belong in the public domain, he argues. “When it comes to small little musical ideas, standard stock little licks or hooks, those sorts of things should not be subject to copyright,” Keyes says.

Professor Ben Depoorter, a copyright law expert at UC Hastings, points to another flaw in the system: he says that courtroom procedures in these types of cases often bias the jury against defendants. The jury first hears extensive testimony from each side’s musical experts, who argue their case using detailed technical analysis.

“By the time you get to the question the jury really has to answer, which is, ‘Is this too much copying? Is it improper? Should there be payment?’ The defendant is already tainted by this question of copying,” says Depoorter. 

“It should really be the reverse,” he continues. “First we should listen to song and ask, ‘Is there something of value being taken?’ And only if we say yes should we do the whole analysis.”

Depoorter highlights another problem with copyright litigation in the streaming era: whereas in previous decades, it was hard to prove that a pop star heard a lesser-known artist’s album, it’s now much easier for plaintiffs to claim defendants heard their work if it has enough streams—something Gray’s lawyers argued in the Perry case. “Since the 2000s, since it’s cheaper to make music on your own computer and, more importantly, cheap to put it online, there is more music and more potential for litigation,” says Depoorter. 

Still, Depoorter says that he hasn’t observed any direct evidence of more lawsuits since the Perry case and another verdict that surprised onlookers: the 2015 ruling against Pharrell Williams and Robin Thicke, who were found to have copied Marvin Gaye’s “Got To Give it Up” with their “Blurred Lines.” Similarly, that case hinged on Williams replicating the song’s overall feel rather than lifting a melody note-for-note.

“I think we’ve seen more high-profile litigation lately, but when I look at the amount of activity in the courts, I think this has been a trend that started after the Michael Bolton decision,” he explains, referencing the 2001 case that penalized Bolton for lifting an Isley Brothers hit. 

Nonetheless, the Perry verdict may cause record labels to move more cautiously. “It is dangerous that someone would own a certain progression of chords when it’s common,” says Depoorter. “Taking a claim on that does have a chilling effect on creativity, that’s for sure. You can go too far with that.”