An attorney told a Los Angeles federal jury Tuesday that Katy Perry's megahit "Dark Horse" and album "Prism" earned a total of $41 million and it was up to the panel to award fair compensation in damages to a Christian hip-hop artist for what was determined to be copyright infringement.
A day after finding that Perry's 2013 chart-topping single included a musical motif lifted from the gospel rap song "Joyful Noise,'' the jury turned to calculating how much money Marcus Gray, who is known as Flame, and collaborators Chike Ojukwu and Emanuel Lambert deserves from Perry and her creative and business partners for the infringement.
Compare the Songs
"I told you that this is a case about taking something without permission; what is fair compensation for ... the profits these defendants made from taking ('Joyful Noise'),'' Gray's attorney, Michael Kahn, said in his opening statement in the damages phase of the trial.
The nine-member civil jury determined late Monday that an ostinato -- a short, constantly repeated rhythmic pattern -- in both songs was identical, leading to the verdict of liability. The panel said the defendants -- including singer/songwriter Sarah Hudson and music producers Lukasz "Dr. Luke" Gottwald, Max Martin and Cirkut -- had ample opportunity to hear "Joyful Noise'' before starting work on the Perry hit, which was included in the "Prism'' album.
In his opening statement, defense attorney Aaron Wais told jurors that the infringing beat was a "relatively minor factor'' in the success of Perry's song.
"A song is more than just an ostinato,'' Wais said. "The most important element is the hook.''
The jury, the attorney said, must ask "what makes a Katy Perry song profitable? And the answer to that is Katy Perry.''
Attorneys for both sides agreed on dollar amounts earned from "Dark Horse'' and "Prism'' in the United States. According to a document read to the jury, Perry raked in $3.2 million, producer Martin earned $1.2 million, Cirkut took home $826,000, co-writer Hudson earned $670,000 and Dr. Luke received $347,000.
Kahn said Capitol Records earned roughly $31 million from sales of the album and single. A Capitol representative is expected to testify Wednesday about the high marketing and distribution costs the label incurred in working the project.
"Some of those costs will have you raising your eyebrows,'' Kahn told the jury.
During the weeklong trial, the panel heard from Perry herself, as well as musicologists from both sides who parsed the contentious electronic rhythm.
The litigation was brought in 2014 by Gray against the Grammy Award-nominated singer and her collaborators. However, the "Dark Horse'' defendants testified they had no knowledge of "Joyful Noise,'' nor had they heard of Gray or the two other plaintiffs before the lawsuit was filed.
Defense attorney Christine Lepera argued that the beat could not be protected by copyright because it was merely "commonplace'' and lacked originality. Further, there was "no reasonable basis'' to assume Perry and her collaborators ever heard "Joyful Noise,'' she said.
Perry took the witness stand July 18 and assured the panel that "Dark
Horse'' was an entirely original work. The 34-year-old singer testified that the song was created after her collaborators presented a series of short instrumental passages, hoping to ignite some inspiration.
"If something sparked my interest, I would go, 'Hmm, I have some ideas,''' Perry testified during about a half-hour on the stand.
She said that after hearing an interesting passage, she and her co-defendants began to fashion the tune that later appeared on her fourth studio album and which she performed in a truncated version at the 2015 Super Bowl.
After a technical glitch caused attorneys to delay playing the recording for the jury last week, the singer drew laughs in the courtroom by offering to perform "Dark Horse'' from the witness box.
In denying Perry's motion for early judgment last summer, U.S. District Judge Christina Snyder found that the plaintiffs "have demonstrated a triable issue of fact as to access because 'Joyful Noise' achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and MySpace.''
The judge said various issues in the case were "questions of fact to be resolved by the jury.''