On December 17th, 2013, Katy Perry, arguably the face of the pop industry, released the single Dark Horse. In a matter of days, the song would rise to the #1 spot on the Billboard Top 100 and stay there for over a month. Fast forward to 2014: Dark Horse has amassed hundreds of millions of streams from around the world, but Perry would have another issue to deal with. On July 1st, 2014, Perry and her team would be sued for a staggering $2.8 million dollars due to a copyright infringement lawsuit with her single. The lawsuit, filed by Flame (Marcus Gray), claimed that Perry had stolen from his song Joyful Noise. Five years later, the jury ruled in favor of Gray, and Katy Perry was required to pay the full $2.8 million (22.5% of the song’s royalties) to Marcus Gray. Linked below is a comparison between the portion of Dark Horse and the portion of Joyful Noise.

To the ear, the four-note ostinato in Dark Horse draws a lot of similarities to Gray’s Joyful Noise. Whether the similarity was purposeful or not, it sounds like Perry’s song is very similar to Joyful Noise – in fact, Gray and his team pointed out “five or six points of similarity.” Because cases are decided by “the average listener,” the jurisdiction eventually agreed that there were substantial similarities. It seems as if this is a straightforward case of copyright. But what the court failed to recognize was that the ostinato that both artists used was not unique at all. As music theorist and YouTuber Adam Neely points out, Marcus Gray was not the first person to use this rhythm:

Further, I can almost guarantee you that the theme’s composer, Akira Ifukube, wasn't the first to use this either. Of course, we cannot prove that Perry did not hear Joyful Noise and decided to copy from it, but it should not matter in this setting. The rhythm that Gray used was not particularly unique; artists have been using it since the 18th century. Christine Lepera, Perry’s lawyer, said it best, “they're trying to own basic building blocks of music, the alphabet of music that should be available to everyone." No one should be able to own a simple chord progression that has been used for centuries. Fortunately for Perry, she won her appeal in March 2020 on the notion that, "allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself, especially in light of the limited number of expressive choices available when it comes to an eight-note repeated musical figure," quoting the court. Essentially, they realized that the rhythm used was not unique and she no longer was required to pay anything. Luckily, she was able to win her infringement, but many other artists won’t be nearly as lucky. 

Dua Lipa’s Levitating versus the significantly smaller Live Your Life by the Artikal Sound System, Robin Thicke & Pharrell Williams Blurred Lines versus Marvin Gaye’s Got to Give It Up, and Ed Sheeran’s Photograph versus Amazing by Matt Cardle are just a couple of other examples.

All of these cases follow similar patterns. The defendant, usually a megastar, uses a popular rhythm, and the plaintiff, usually a smaller songwriter, says something along the lines of, ‘the defendant's song rips off my song as they use this popular rhythm in a similar way I used it.’ Essentially, the plaintiff is trying to copyright an ordinary rhythm or a chord progression. Even worse, in recent years, the amount of copyright lawsuits artists have received has drastically increased. I almost guarantee that your favorite 21st century album has been hit with at least one copyright lawsuit.

So the issue is clear: the “copyright lawsuit boom,” targeted toward major artists, is costing them significant amounts of money. But besides the fact copyright lawsuits are taking money out of megastars’ pockets, how does this affect the music listener?

Earlier this year pop singer Ed Sheeran won his copyright lawsuit over Shape of You, and was awarded $1.1 million to cover his legal fees. After, he took to Instagram and released a video in which he talked about copyrights in the industry quoting “it’s really damaging to the songwriting industry. There are only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify,” and here lies the issue. With every songwriter using the same 12 notes and the same rhythms, there is only so much uniqueness an artist can have if 2.2 million songs are being released every single year. Trying to be unique would just cause a sense of confinement. As Hayleigh Bosher, an expert in the field of music copyright, puts it, “I don’t think copyright is doing its job properly if songwriters are afraid, that’s stifling creativity.” A musician that is afraid of copyright would be very hesitant to publish an album that contains multiple tracks that sound as if they could be part of a different song. Back in 2020, Amy X. Wang wrote an article for RollingStone titled How Music Copyright Lawsuits Are Scaring Away New Hits, in which she explained how, every year, thousands of potential megahits are being chased away due to their artists being scared that their songs will end up in a handful of copyright claims. All of this means that the average listener is potentially missing out on countless songs that could spice up their playlists; all as a side effect of songwriting lawsuits.

Now of course, we can’t eradicate musical copyright entirely. In some cases, the court ruling in favor of the plaintiff would be acceptable. This is not a yes or no type of question,  meaning that there is no straightforward answer, but I can say for sure that the fine line that decides whether this plaintiff wins a case needs to move farther and farther towards the right.

Truth be told, this does not only apply to the musical industry, it applies to the creative industry as a whole, and being accused of copyright doesn’t have to necessarily be under the law, it could be induced by the public. For example, we’ve seen YouTubers being accused of “stealing videos” all of the time, and similarly to the musical cases, the ideas they are “stealing” are not remotely original. So, the next time you think someone is stealing a creative piece, take a look at the bigger picture.