Closing arguments are scheduled Thursday in the damages phase of a federal copyright-infringement case in which jurors determined that Katy Perry’s hit “Dark Horse” featured a rhythmic beat lifted from a Christian rap song titled “Joyful Noise.”
Jurors are being asked to determine how much in damages may be owned to “Joyful Noise” artist Marcus Gray, known as Flame.
During testimony Wednesday, an attorney told the jury that Capitol Records earned roughly $31 million from sales of an album, single and concert video featuring “Dark Horse,” but a label vice president countered that expenses cut the company’s profits to about $630,000.
Steve Drellishak, a vice president at Universal Music Group, testified that the company’s costs in marketing the Perry hit included distribution, manufacturing, royalties, licensing and various supplemental costs, which offset profits by millions.
In addition, Drellishak listed costs involved in maintaining Perry’s “brand” during the “Dark Horse” marketing period — over $13,000 for a clothing stylist, $73,000 for a charter flight, $3,000 for a hair stylist, $800 manicures and $6,000 on limousines for an appearance at the Video Music Awards.
“She always has to be in the most fashionable clothes, the most fashionable makeup,” the executive said, adding that Perry is “constantly changing her image.”
Drellishak told the jury that Perry was so important to Universal — which owns Capitol — that her 2013 hit created work for everyone at the label.
“If we didn’t have an artist like Katy Perry, we wouldn’t have as many people employed,” he testified.
The nine-member civil jury in downtown Los Angeles determined Monday that an ostinato — a short, constantly repeated rhythmic pattern — in Perry’s “Dark Horse” and “Joyful Noise” were identical, leading to the verdict of liability. The panel said the defendants — including Perry, singer/songwriter Sarah Hudson and music producers Lukasz “Dr. Luke” Gottwald, Max Martin and Cirkut — had ample opportunity to hear “Joyful Noise” before starting work on the Perry hit, which was included on the “Prism” album and on a concert DVD.
The question the panel must now ponder is how much money Gray and collaborators Chike Ojukwu and Emanuel Lambert deserve from Perry and her creative and business partners for the infringement.
Attorneys for both sides agreed on dollar amounts earned from “Dark Horse” and “Prism” in the United States. According to a document read to the jury, Perry raked in $3.2 million, producer Martin earned $1.2 million, Cirkut took home $826,000, co-writer Hudson earned $670,000 and Dr. Luke received $347,000.
Gray’s attorney, Michael Kahn, said Capitol earned a little over $31 million from sales of the album, DVD and single.
During the weeklong trial, the panel heard from Perry herself, as well as musicologists from both sides who parsed the contentious electronic rhythm.
The litigation was brought in 2014 by Gray against the Grammy Award-nominated singer and her collaborators. However, the “Dark Horse” defendants testified they had no knowledge of “Joyful Noise,” nor had they heard of Gray or the two other plaintiffs before the lawsuit was filed.
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 the song was created after her collaborators presented a series of short instrumental passages, hoping to ignite some inspiration.
She said that after hearing an interesting passage, she and her co-defendants began to fashion the tune that later appeared on her fourth studio album and which she performed in a truncated version at the 2015 Super Bowl.
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