Jurors deliberated for a second day Monday in the trial of a lawsuit filed by a Christian rapper who claims Katy Perry lifted a portion of one of his songs for her 2013 hit “Dark Horse.”
Perry’s attorney says the beat in question is “commonplace” and can’t be copyrighted.
Jurors deliberated a full day Friday without reaching a verdict and reconvened Monday morning to continue weighing the evidence.
During the weeklong trial of the copyright-infringement case, the nine-member jury in Los Angeles federal court heard from Perry herself as well as musicologists from both sides who parsed the contentious 16-second instrumental phrase. Perry’s experts argued there is no similarity in the songs beyond generic elements, but plaintiff Marcus Gray alleges the beat was unique and had been lifted from his “Joyful Noise” song.
“This was a case about taking,” Gray’s attorney, Michael Kahn, said in his closing argument Thursday. “The defendants copied an important part of (Gray’s) song.”
The litigation was brought in 2014 by Gray, better known as Christian rapper Flame, against the Grammy-nominated singer and her collaborators. However, the creators of “Dark Horse” testified they had no knowledge of “Joyful Noise,” nor had they heard of Gray or the two other plaintiffs before the suit was filed.
Defense attorney Christine Lepera told jurors that the eerie, electronic beat could not be protected by copyright because it was merely a “common building block” of music.
“It is commonplace expression,” she said, adding that the Perry song’s “unremarkable” beat is the only element the two tracks have in common.
“There is no reasonable basis to assume” Perry and her collaborators ever heard “Joyful Noise,” Lepera said.
Unlike Perry’s hit, Gray’s song lacked “widespread distribution,” and any contention that the Perry team had been exposed to it is “pure speculation,” she said.
Perry took the witness stand July 18 and assured the panel that “Dark Horse” was an entirely original work.
The 34-year-old singer testified that her song was developed after her collaborators presented a series of short instrumental passages, hoping to ignite some inspiration.
“If something sparked my interest, I would go, `Hmm, I have some ideas,”’ Perry testified.
She said that after hearing an interesting passage, she and co-defendants Sarah Hudson, Dr. Luke, Max Martin and Cirkut began to fashion the tune that later appeared on her fourth studio album, “Prism,” and which she performed in a truncated version at the 2015 Super Bowl.
After a technical glitch caused attorneys to delay playing the recording for the jury last week, the Grammy Award-nominated singer drew laughs in the courtroom by offering to perform “Dark Horse” from the witness box.
In denying Perry’s motion for early judgment last summer, U.S. District Judge Christina Snyder wrote that the plaintiffs “have demonstrated a triable issue of fact as to access because `Joyful Noise’ achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and MySpace.”
The judge said various issues in the case are “questions of fact to be resolved by the jury.”