Flame's copyright claim success a 'dark horse'

By Max Jones
Intellectual Property Patents & Trade Marks

In brief 3 min read

Christian rapper Flame has succeeded in a copyright infringement claim against Katy Perry regarding her single 'Dark Horse', in what some are viewing as an overreach of copyright protection.


A jury in a US District Court has found that Katy Perry's 2013 single 'Dark Horse' infringed copyright in the 2008 Christian rap song 'Joyful Noise' by Flame (Marcus Grey).

The jury reportedly ordered Perry (and the song's co-writers, producers and record companies) to pay a total of US$2.78 million in damages.

The claim was based on the use of an eight-note instrumental riff, described as a 'descending ostinato figure', which featured prominently in both songs. The jury was satisfied that Perry was reasonably likely to have accessed Flame's work, and that the two works were substantially similar.

Access in the digital age

It was undisputed that the writers of 'Dark Horse' had never met, received music from, or attended concerts by, the writers of 'Joyful Noise'. Perry and her co-writers claimed they had never heard Flame's music.

Despite this, Flame successfully argued that it was reasonably likely that the defendants had accessed his song. Flame relied on the fact that 'Joyful Noise' had 3.88 million views on YouTube, roughly 2.4 million plays on Myspace, and that it had received some critical acclaim, including the album it appeared on being nominated for a Grammy Award for Best Rock or Rap Gospel Album.

Substantial similarity

Flame's expert opined that the eight-note ostinato figure in the two songs was identical in length (two bars of eight beats), rhythm (eight short, even quarter notes), timbre and pitch. Perry did not successfully satisfy the jury that the two songs were different based on differences in overall chord progression, melody and lyrics.

What effect will the decision have?

This decision might be joyful news for some musicians, but could have chilling effects on musical creativity, given the infringing portion comprises an unremarkable selection of notes within the minor scale, which have been used in a number of other songs.

Perry looks set to appeal. If the decision stands, it could expand the circumstances in which 'access' can be inferred from distribution via online platforms, and open the starting gate for copyright infringement claims based on unremarkable sequences of notes.

How does the US $2.78 million compare with damages in Australian copyright cases?

The US decision, including the quantum of damages, was based on a jury finding, which we would not see in an Australian copyright case. In 2011, the Full Federal Court in EMI Songs v Larrikin Music Publishing affirmed that Men at Work's 'Down Under' infringed copyright in the nursery rhyme 'Kookaburra Sits in the Old Gum Tree'. In that case, a part of the flute melody in 'Down Under' was found to have copied a 'substantial part' of 'Kookaburra', despite the fact that the melodies were played in a different key, tempo and rhythm, with different harmonies and in the context of a different overall song structure. In contrast to Perry's case, EMI was ordered to pay only 5% of all royalties received from 2002 onwards (approximately AU $100,000) as damages. Australian courts have a discretion to award additional damages for copyright infringement, but this is ordinarily reserved for particularly egregious cases and was not awarded in that case.