Jurors in the damages phase of a federal copyright-infringement case in which Katy Perry’s “Dark Horse” single was found to have used a purloined beat were urged Thursday to award nearly half of the song’s profits of about $41 million to the creators of a Christian pop song that was the source of the lifted part.
However, an attorney for Perry’s team argued that the panel should award only about $360,000 to “Joyful Noise” creator Marcus Gray, known professionally as Flame, and his two co-writers because their beat contributed to merely five percent of the song’s value and was a “relatively minor” factor in “Dark Horse’s” success.
Perry was not in the downtown Los Angeles courtroom when attorneys gave their closing arguments.
“These defendants made millions and millions of dollars from their infringement of the plaintiffs’ song,” said Gray’s attorney, Michael Kahn, who alleged that the beat from his client’s rap song was among the primary reasons for the sales of “Dark Horse” and consequently deserved nearly $20 million.
Defense attorney Aaron Wais countered that Universal’s marketing muscle, Perry’s celebrity and performance were the driving factors in the 2013 hit song’s success — not the “Joyful Noise” beat. Testimony showed that “Dark Horse” was streamed more than a billion times and raked in over $9 million in digital sales alone.
“The reason people buy a Katy Perry song or album is because it’s Katy Perry,” Wais told the jury.
The attorney argued that Gray’s contention that the infringing beat appeared in 45 percent of the “Dark Horse” track — and so was worth 45 percent of its profits — “is just plain wrong.”
While Kahn suggested that his clients deserved about $20 million, Wais argued that if damages are, in fact, owed, Perry — who earned $2.4 million from the song — should be dinged $122,000, while her label should pay $31,000, and her co-defendants should be billed in amounts of no more than $56,000 each.
“We think that’s more than fair,” Wais said.
The jury began their deliberations just before lunchtime.
During testimony Wednesday, an attorney told the jury that Capitol Records earned more than $31 million from sales of an album, single and concert video featuring “Dark Horse,” but a label vice president countered that overhead and various expenses cut the company’s profits to about $630,000.
Steve Drellishak, a vice president of finance 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 tens of millions of dollars.
In addition, Drellishak listed costs involved in maintaining Perry’s “brand” during the “Dark Horse” marketing period — over $13,000 for a wardrobe 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 “Dark Horse” and album “Prism” 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’s “Dark Horse” that was included on the “Prism” album and was part of 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.
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.