Katy Perry

Katy Perry’s ‘Dark Horse’ lawsuit shows why it’s dumb (and expensive) to see pop as pure commodity

I’m just a girl, standing in front of a stream of lawyers, asking whether that money couldn’t be better spent on making some more tunes.

Last week, the news that Katy Perry will appeal a recent $2.7 million song theft ruling has brought up an old tension headache: what constitutes theft in pop music, and what’s it worth?

Back in July, Californian courts decided that Perry’s track ‘Dark Horse’ had – perhaps consciously, perhaps unconsciously – infringed the copyright of a 2008 Christian rap song, ‘Joyful Noise’, by the rapper Flame. And because this is America, this was worth an incredibly large – and arbitrary – amount of money.

While nobody would disagree that artists should have their intellectual property protected by law, once we scratch a little beneath the surface, it doesn’t take a lawyer to tell you that this case is dumber than the estate of Monet suing anyone who paints a water lily.

First things first. Musicologically, did Perry infringe Flame? The answer is that nobody seems to know. Both sides employed musicologists during the trial. They argued that there is a commonality between the musical phrase used by Perry and the original track (true), and also that it is such a basic element that it’s impossible to attribute to a particular artist. It’s simply one of the building blocks of music like blue is a basic building block of painting, and hydrogenated fat is a basic building block of fast food.

It’s worth noting that this element isn’t a sample: that is, Perry hasn’t used any part of the recorded track. Far from it: the beat in question is just four C notes followed by two B notes.

This already somewhat wiggly logic was then compounded further when it proved impossible to demonstrate that anyone on Team Perry had actually heard ‘Joyful Noise’ prior to writing and recording the track. Nonetheless, courts ruled that 22.5% of the net profit from ‘Dark Horse’ must be awarded in damages to the team behind ‘Joyful Noise’ – a percentage which had to be plucked from a special legal hat, given that it’s also impossible to quantify the exact financial contribution those six notes made to the profits from Perry’s release.

You might have spotted that an increasing number of music copyright lawsuits have hit the US courts this year. Do you reckon that Led Zeppelin, while writing ‘Stairway to Heaven’, were pulling an intellectual heist on Spirit’s 1978 track ‘Taurus’? It’s a weird convergence of the twain: the country’s relatively liberal copyright laws and its appetite for litigation – the mania of which reminds me of my aunt’s rescue dog, Daisy, made aware of some chicken left unattended on the counter. Perry v Flame, then, isn’t a crazy outlier: but it is a neat example of why, when it comes to pop music, some areas of copyright law make no sense.

Of course, Perry and her team are successful to the degree that Flame is not, and not even her most passionate defenders could accuse the Perry catalogue of searing originality. So should we read this as a glittery, millennial retelling of David and Goliath?

I reckon that would be silly, and here’s why.

Pop is all about re-inventing the wheel. Indeed, that’s kind of its raison d ‘être. Unlike, say, opera, you don’t need decades’ worth of study in the Conservatoire de Paris to write a pop song. Some knowledge of roughly eight chords, the requisite technology to download some free loops from a dodgy site on the internet, and some time spent listening to the radio are not just the basic requirements: they might actually over-qualify you.

It, therefore, stands to reason that, as pop is totally predicated on the pick’ n’ mixing of generic elements, a lot of it is going to be really quite similar. This isn’t exclusive to popular culture, obviously. The truism that ‘Good artists copy, but great artists steal’ has been misattributed to pretty much every modernist, from Picasso to Stravinsky. But popular culture is maybe where genre – endless matching and re-matching of things nobody owns – is pursued hardest, and treated as the most fun.

Clearly, Perry has been hit with a $2.7 million lawsuit because her song made about $41 million. A kid with Garageband on their laptop and an account with CDBaby is hardly likely to get sued, but we would be foolish to think that there is no trickle-down effect when stupid things happen in the upper echelons of music.

At their heart, these lawsuits appear to reduce songs and their components to commodities, whose worth can be quantified and owned. Aside from the practical, legal issue of how to objectively ascribe financial value to one phrase of a song’s composition, when it is difficult enough to put an exact number on the worth of the song as a whole, there is the ethical sense here that something is being gradually privatised which for all of human history has been public property.

While the aforementioned teenager with Garageband hardly lives in fear of being sued, the commodification of musical language seeps into how they think. It is increasingly not something they speak themselves, (how can it be, when musical phrases belong to those rich enough to defend their ownership in court?) but something they observe being traded amongst professionals.

Our obsession with authorship comes at a cost to writing itself. In increasingly individualistic times and an increasingly isolationist country, the language of music is a reminder that not everything can be bought, sold, and owned by individuals. When we try to, we make ourselves look like fools – and our lawyers very rich.

You don’t need to be Bernie Sanders, or to own any clothing item made out of recycled ocean plastics, to understand that a cultural sector in which ideas cannot be freely traded is one which will ultimately cannibalise its own sources of growth, creativity, and purpose. Tempting as it is to pursue the big bucks in court, this granular level of copyright litigation will one day screw us all.

While not often known as a patron of the arts, we still would do well to remember Mr Burns’ closing remarks on the subject of his lawyers: ‘Damn their oily hides.

Photo: splashnews.com

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