A jury in California recently handed down a $US2.78 million verdict against Katy Perry and writers of the 2013 hit ‘Dark Horse’ for copying from a Christian rap song ‘Joyful Noise’. The decision follows a line of high-profile copyright infringement cases in the music industry in recent years, including the dispute involving ‘Blurred Lines’ where Robin Thicke and Pharrell Williams were found to have illegally copied from Marvin Gaye, and Sam Smith handing over 25% of royalties to settle an infringement claim over ‘Stay With Me’. An interesting issue raised in the ‘Dark Horse’ case was whether several million views on YouTube is sufficient to demonstrate access through widespread dissemination.
The Issue in the ‘Dark Horse’ Case
Christian rap/hip-hop artist Marcus Gray, known as ‘Flame’, commenced legal proceedings against Katy Perry in 2014. Gray claimed that the repeated use of descending ostinato in ‘Dark Horse’ constituted copyright infringement. He presented musicologist evidence which suggests that the ostinatos in the two songs are nearly identical in ‘pitch content and melodic contour’.
In order to prove copyright infringement, Gray had to establish
- ownership of the copyright, which was not disputed; and
- that the defendant copied protected elements of the copyright work.
In the absence of direct evidence of copying, Gray had to demonstrate that Perry and her team had access to the work and that the two works were substantially similar.
Gray sought to prove access by demonstrating that ‘Joyful Noise’ had been so widely disseminated that there was a reasonably possibility that the defendants had heard it. Evidence was presented to show that ‘Joyful Noise’ received critical success after its release, including topping Christian music charts and receiving a Grammy nomination in 2009. The plaintiff also provided evidence that between 2007 and 2013 the six videos of ‘Joyful Noise’ amassed nearly four million views on YouTube and MySpace.
The defendant argued the significance of online play counts should be discounted as they do not convey information on how many unique humans viewed the content. It was further argued that ‘Joyful Noise’ did not achieve widespread dissemination due to its lack of commercial success.
United States Legal Principles on Copyright Infringement
Under US law, evidence required to establish widespread dissemination varies from case to case. In Loomis v Cornish, where the court dismissed an infringement claim against Jessie J,  it was held that the degree of commercial success the copyright work obtained and its distribution through mediums such as radio and television were important considerations. The bare possibility of overhearing the copyright work on the radio, reading about it in the magazines and picking up a promotional CD does not give rise to a triable issue of success.
In contrast to Loomis, Katy Perry’s application for summary dismissal was rejected. The court found that while existence online alone does not justify an inference of access, Gray had demonstrated more than mere posting online. The millions of views ‘Joyful Noise’ had accumulated on readily accessible websites, the Grammy nomination it received and its success in the Christian hip-hop/rap market could cause a reasonable jury to conclude that there was a reasonable possibility of access. The lack of commercial exploitation does not bar infringement proceedings but instead is a question of fact to be determined by the jury.
The case raises an interesting question on the role of YouTube when assessing the issue of widespread dissemination. Four million views may seem like a lot before one considers the amount of traffic generated online daily. More than thirty-million users visit YouTube and contributes five billion views each day. The figure is further dwarfed when compared to those ten thousand YouTube videos which have amassed over one billion views. An argument may be made that ‘Joyful Noise’ could easily have been drowned out by the millions of videos uploaded online daily.
While it may be helpful to infer popularity based on view counts online, placing too much weight on this factor lowers the threshold of the access test. In fact, the criterion may be rendered senseless if all that needs to be shown to prove access is several million views on YouTube.
Australian Principles on Copyright Infringement
Under Australian principles on copyright infringement, the copyright owner must 1) demonstrate there is objective similarity between the two works and 2) establish that the alleged infringement is causally connected to the original work.
The first stage involves an objective analysis of the similarities, and the second stage is a subjective inquiry of whether the alleged infringer copied the copyright work. Once it is identified that the alleged infringer copied part of the original work, a further question arises as to whether the copied part constitutes a substantial part of the original work.
The act of copying may be direct or indirect, conscious or subconscious. Widespread dissemination is only one factor the court may take into account when proving causal connection. Unlike the US legal framework which considers access and similarity as distinct questions, analysis of objective similarity and causal connection are often interrelated in Australia. In the absence of direct evidence of copying, an inference of use and access to the copyright work may be drawn where there is sufficient degree of similarity between the two works. Causal connection may be inferred more readily where evidence demonstrates that the alleged infringer had opportunity to access the copyright work and failed to provide explanations for the alleged similarities. But such an inference is not an irrebuttable presumption. The defendant may provide evidence of independent creation. If the work had been independently created, coincidental similarity with the original work does not constitute copyright infringement.
If heard in Australia, there is a possibility the ‘Dark Horse’ case may play out differently. It may be argued that despite the use of similar music elements, an ordinary reasonably experienced listener would not detect objective similarity between the songs. Even if there were some degree of similarity, an inference of copying would not arise in the absence of a causal connection. Perry and her team could further present evidence of the labour and effort that went into creating the song to demonstrate that ‘Dark Horse’ was the result of independent intellectual work and any similarity is merely coincidental.
The ‘Dark Horse’ verdict is no joyful news to the music industry. Many believe it will stall creativity by providing protection for non-copyrightable basic musical elements, and incentive for future copyright litigation. It also demonstrates how courts and juries attempt to interpret the legal concept of widespread dissemination in light of modern digital developments. Katy Perry is set to appeal the decision. It seems that the spotlight will continue to be on the issue of music theft, especially with the trial involving Ed Sheeran’s 2014 global hit ‘Thinking Out Loud’ just on the horizon.
This article was prepared by Wenkai Lyu and Luke Hawthorne
 Loomis v. Cornish Cites as 836 F.3d 991 (9th Cir. 2016) (in the news)
 Marcus Gray et al. v. Katy Perry et al. Case No. 2:15-cv-05642-CAS (JCx)
 Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd  FCAFC 197; 172 FCR 580
 Tamawood Ltd v Habitare Developments Pty Ltd (admin apptd) (recs and mgrs apptd) (2015) 112 IPR 439
 Francis Francis Day & Hunter Ltd and another v Bron (trading as Delmar Publishing Co) and another  2 All ER 16