Way back in 2014, Chris Pratt was a lovable doofus on Parks and Rec, Billie Eilish was an anonymous Los Angeles tween, Donald Trump was a middling reality show host and a Christian rapper named Flame had a bone to pick with Katy Perry. He went to court, alleging Perry’s “Dark Horse” ripped off a 2008 song of his called “Joyful Noise,” which he’d recorded with Lecrae and John Reilly. Now, finally, it looks like the lengthy legal saga may have come to a close, as Flame has lost his latest appeal.
That wasn’t a given. In 2019, a jury ruled in Flame’s favor, saying Perry and her team owed Flame $2.78 million in copyright-related damages. But in 2020, Perry appealed and a judge overturned the decision, writing that “[b]ecause the sole musical phrase that plaintiffs claim infringement upon is not protectable expression, the extrinsic test is not satisfied, and plaintiffs’ infringement claim—even with the evidence construed in plaintiffs’ favor—fails as a matter of law.”
Flame appealed that decision, but now: no dice. The judge’s decision appears to hinge on the idea that the elements of “Joyful Noise” that sound similar to “Dark Horse” are simply too commonplace to fall under copyright protection. “The Ninth Circuit concluded that the two songs’ similar ostinatos result only from the use of commonplace, unoriginal musical principles, and thus could not be the basis for a copyright infringement claim,” wrote Eric Ball and Ryan Kwock, two attorneys for Fenwick, a law firm that specializes in the intersection of digital tech and intellectual property.
The Perry v. Flame dust-up is just one of many similar lawsuits in recent years, including several that Dua Lipa is currently finding off over her mega-hit “Levitating.” In the streaming era, inspiration is free flowing and the amount of songs being created with what is, at some level, a finite amount of melodies and beats has opened the door for a lot of lawsuits. The digital era of music is well into its 30s now but the laws around it are still operating in pre-digital fashion. Sooner or later, they’ll have to adapt to a new norm.
