'Dark Horse' lawsuit: Katy Perry, record company owe $2.78 million for stealing song
Jurors decided Thursday that Katy Perry, her collaborators and her record label owe the writers of a Christian rap song $2.78 million for stealing elements of the 2009 song "Joyful Noise" for Perry's 2013 hit "Dark Horse."
After more than a week of testimony in federal court in Los Angeles, the jurors in the copyright case decided Christian rapper Marcus Gray should get just over $550,000 from Perry, with her Capitol Records label responsible for the majority of the $2.78 million.
The same jury of nine unanimously found Monday that certain beats in "Dark Horse" were improperly copied from "Joyful Noise," co-written and performed by lead plaintiff Gray, who went by the stage name Flame at the time.
"Dark Horse," a hybrid of pop, trap and hip-hop sounds that was the third single from Perry's 2013 album "Prism," spent four weeks atop the Billboard Hot 100 in early 2014. It earned Perry a Grammy Award nomination and was part of her 2015 Super Bowl halftime performance.
Perry was not in court for the verdict, although she appeared in court Monday, along with the song's co-authors, including producer Lukasz Gottwald (known as Dr. Luke). She offered to sing her song in the courtroom when technical snafus initially prevented lawyers from playing it.
After the first phase of the trial – was copyright law violated? – the second phase shifted to the penalty question – determining how much the Perry song had earned and how much to award to Gray and his collaborators. The two sides came up with wildly different numbers.
Lawyers for Gray and his two co-writers told the jury they should get nearly $20 million. Defense attorneys argued for about $360,000.
"These defendants have made millions and millions of dollars from their infringement of the plaintiff's copyright," Gray's attorney, Michael A. Kahn, told the jury. "They seek a fair portion of the defendants' profits. Not all of them."
Lawyers for Perry and her co-defendants said the plaintiffs' demands were based on ludicrous figures. "They're not seeking fairness," the defendants' attorney, Aaron M. Wais, told the jury. "They're seeking to obtain as much money as possible."
The plaintiffs argued that Capitol Records received more than $31 million for the "Dark Horse" single and the album and concert DVD on which it appeared.
An attorney for Capitol Records told jurors that expenses incurred in producing and promoting the song trimmed the label's profits to roughly $650,000. (Capitol Records is owned by Universal Music Group.)
Attorneys for both sides told the jury that Perry herself earned $3 million, minus $650,000 in expenses.
Whatever else this trial proves, it was another glimpse into the baffling practices of entertainment accounting, in which millions are supposedly made from movies and records but profits are allegedly minuscule by comparison.
Steve Drellishak, a vice president at Universal Music Group, testified Wednesday that it's expensive to promote a Katy Perry hit but the costs are essential to her "brand."
Such as: More than $13,000 for a wardrobe stylist for one night. More than $3,000 for a hairdo. More than $800 for a manicure. Not to mention nearly $2,000 for flashing cocktail ice cubes.
"She always has to be in the most fashionable clothes, the most fashionable makeup," Drellishak told the jury. "She changes her look a lot. That's core to what the Katy Perry brand is."
Drellishak said the huge marketing campaign for the album, manufacturing and digital transmission costs, employee salaries and artist royalties are among the expenses that have to be factored in.
Jurors had to get into some challenging weeds in calculating who gets what. The figures used by Capitol and the defense come partly from dividing the earnings of the album by the number of tracks on the album — 13 in the original edition, 16 in the deluxe edition.
Gray's attorneys have said that because "Dark Horse" was arguably the biggest hit on the album, the share should be bigger.
Drellishak's testimony reflected the massive digital shift the music business has undergone in recent decades, a shift that has also given singles precedence over full albums amid the short attention spans spawned by streaming.
He said "Prism" has sold 1.2 million physical copies, but "Dark Horse" has been streamed 1.89 billion times.
Jason King, a professor who specializes in pop music called by the defense, testified that the success of the song was driven primarily by the enormous star power of Perry and the marketing, neither of which involved the disputed parts of the song.
"Katy Perry had enormous celebrity brand value before the release of 'Dark Horse,'" said King, an associate professor at New York University. "That kind of celebrity can drive the success of a single, because the public is primed."
Wais argued that the disputed part of "Dark Horse" was worth only 5% of its earnings.
While copyright infringement claims are common in music, they rarely result in such losses for high-profile artists.
A jury in 2015 returned a multi-million dollar verdict against Robin Thicke and Pharrell Williams over their 2013 hit "Blurred Lines." The judgment, which remains on appeal, was in favor of the children of Marvin Gaye, who sued alleging that "Blurred Lines" copied from their father's hit "Got to Give It Up."
Contributing: The Associated Press; Maria Puente, USA TODAY
This article originally appeared on USA TODAY: 'Dark Horse' verdict: Katy Perry, record label owe rapper $2.78 million