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Dr Luke says songwriters will be creatively constrained if court rules Katy Perry hit ripped off Christian rap track

By Chris Cooke | Published on Wednesday 24 July 2019

Producer Dr Luke yesterday told a jury that allowing someone to own a simple musical phrase – like that used in Katy Perry’s ‘Dark Horse’ – would constrain songwriters in much the same way as telling an author they weren’t allowed to use the words ‘the’, ‘and’ or ‘a’. He also insisted that neither he nor any of his songwriting pals had ever heard of the Christian rap track they are accused on ripping off on Perry’s 2013 hit.

That Christian rap track is called ‘Joyful Noise’ and was released by an artist called Flame, real name Marcus Gray. He sued Perry all the way back in 2014, arguing that she and her co-writers on ‘Dark Horse’ subconsciously copied the song he had made with his creative collaborators several years earlier.

To prove that, Gray needs to show that ‘Joyful Noise’ and ‘Dark Horse’ are sufficiently similar to constitute copyright infringement. And then he needs to show that Perry or one of her collaborators had heard the religious rap before writing the pop hit.

When the dispute finally reached court last week, Perry herself insisted that she had never heard of Gray or his record, while her legal reps argued that the musical elements the two tracks have in common are simple constructions found in a plethora of songs.

Yesterday it was Perry collaborator Dr Luke’s turn to insist he’d never heard of Gray and that the features of ‘Joyful Noise’ he is accused of stealing are simple musical building blocks that any songwriter might employ. On his ignorance of Gray’s oeuvre, the producer in part relied on the big wall that sits between Christian music and all things pop. There’s no way he could have heard ‘Joyful Noise’ playing on the other side of that divide, he argued.

And anyway, he then added, repeating the Perry side’s key argument, the musical phrase ‘Joyful Noise’ and ‘Dark Horse’ share – four C notes followed by two B notes – is way too simple to be protected by copyright. It employs the basic building blocks of music in a very simple way, he said, according to Law360. If copyright law could be used to prevent songwriters from using such basic building blocks in that way, “it’d be like trying to write a book without using words like ‘the,’ ‘and’ or ‘a'”.

The producer also discussed the creative process that led to ‘Dark Horse’. It all began with a catchy instrumental beat put together by Henry Walter, aka Cirkut, who also testified yesterday. Luke heard that beat and suggested adding some underlying bass notes to give it all a little more depth. When Perry later heard it, she “immediately lit up at the sound of it”, and so the full song was built around Cirkut and Luke’s original creation.

That, see, is how you go about creating a song copyright. Not just putting six notes in a row and claiming you now own that musical phrase. Or, at least, that’s what Perry, Luke and Cirkut would like you all to know, all three being very keen to tell the court just how seriously they take this music making lark.

Although, in the interest of balance, we should point out that a musicologist hired by the plaintiffs in this case was adamant that ‘Joyful Noise’ and ‘Dark Horse’ are “substantially similar”. And you can’t have a song-theft case without a musicologist insisting two songs are “substantially similar”.

The court hearing continues.