Katy Perry Found Liable for Copying Christian Song

A Los Angeles jury recently returned a verdict finding that Katy Perry's 2013 hit song, "Dark Horse”, violated a prior copyright attached to a 2009 Christian song called "Joyful Noise." Katy Perry and four other songwriters as well as the label and distributors were all found liable for damages to Christian rapper Marcus Gray (a.k.a. Flame) and two co-authors of Joyful Noise. The jury awarded damages of $2.78 million.

Katy Perry and her fellow songwriters defended the claim partially on the basis that they had never heard the song "Joyful Noise" before and, therefore, could not have violated its copyright. Because, however, Katy Perry had previously recorded in the Christian music genre under the name Katy Hudson, it appears the jury did not find her claim credible. Once a jury doubts a party's word in relation to one defense, other defenses can become problematic. The second line of defense was that the allegedly copied component was simply a basic building block of music and not subject to copyright protection. Once the first defense was rejected, and the jury was exposed to a convincing musicologist testifying on behalf of the plaintiff, the jury also rejected the second defense.

The allegedly stolen component is neither the melody nor the lyrics of Dark Horse. Rather, a repetitive ostinato acting as a drone underneath the melody was held to be substantially similar to the prior recording. This finding is troublesome for future songwriters in several ways. First, as was the case in the Blurred Lines litigation, the offending component is not actually susceptible to copyright. Second, the offending ostinato follows a musical tradition which can be traced back to the music of Johann Sebastian Bach. Current copyright litigation seems to be heading down a dangerous path which confuses musical inspiration with illegal infringement. Such an issue can stifle creativity and lead to reluctance to release new music. The use of musicologists as experts has led to the development of a cottage industry of partisan testimony much like that which has developed in pharmaceutical and tobacco litigation. We can expect much more litigation in this area until the case law becomes more clearly defined and precedent establishes that claims can only be brought on infringement of a copyrightable component.

If you have questions on copyright infringement or general questions on entertainment law, please contact me.

My Band’s Trademarked Name

The running of a successful band should be considered no different than running a more traditional business. As a business must protect its intellectual property so must a band, including the right to use its own name exclusively. A Trademark is used when a company, business, or in this case a band, seeks to obtain protection for its name and/or logo, as used on its goods and/or services. That “mark” identifies to the consumer that the goods or services come from a particular source. Should you decide to protect your band’s name through registering it as a Trademark, there are certain steps you need to take. To be registerable, your name must not create a “likelihood of confusion” between your name and one already registered, or one which exists in a prior-filed, pending application. Once submitted, the Trademark office might find that the likelihood of confusion exists when your name or “mark” is similar to another and when the goods and/or services are related such that consumers might believe they come from the same source. If, for example, you decide to name your band name “The Blak Keyes” fans of The Black Keys may be confused and disappointed if they turn up at your show! Accordingly, such a Trademark would not be accepted. Even though the spelling is different, remember that potential consumer “confusion” exists when the pronunciation of the two names are “phonetic equivalents”.

When addressing trademarks the mark itself must be dissimilar from others. For band names this is the essential test as it is usually accepted that bands, in selling music, regardless of genre, seek attention from the same consumers. Since there are so many bands, finding an original and protectable name can be a challenge. Significantly, “fanciful” names (invented words with no dictionary meaning), are more likely to be registered than descriptive marks. Also “arbitrary” marks (recognized words used in an unusual or unexpected situation) are also more likely to be protectable. Remember that registration is often refused for names which could be considered disparaging or offensive. To make sure that your band name is available for trademark registration, make sure you search the federal database. You can do so through the United States Patent and Trademark Office (“USPTO”) free search system known as “TESS” (Trademark Electronic Search System) which is available at http://www.USPTO.gov/trademarks. Please remember though, that TESS will only search federally registered marks and trademark rights also frequently exist through state “common law”. Such common law rights protect the use of the mark in commerce within a particular geographic region and in most states, registration is unnecessary. You must search, using Google or other search engines for businesses or brand name which share your name and conduct business with a similar group of consumers within the same geographic area to be sure that you have not chosen a name being used by someone else.

Prior to registering the Trademark, issues related to ownership of the intellectual property rights must be addressed. Most bands, in the absence of an agreement to the contrary, are considered partnerships under state law. Accordingly, each member of the partnership may own an equal share of the assets including the intellectual property. As a result, ownership of the name – and the rights associated with using the name in commerce - may not reside in a formal business entity but jointly among the individual partners or members. Because this can cause problems when band members leave, an agreement between the members, and a clear and unambiguous transfer of the intellectual property into a business entity owned by the members, is recommended. This agreement is also important because it can act to overcome copyright presumptions that ownership of an original work belongs to the creator.

In conclusion, when seeking to obtain protection for your band name make sure that it is appropriately and exhaustively researched, both in federal databases and in your own geographic region, to make sure that the name is not taken. Second, make sure that ownership of the name is held within a business entity owned by you! Good luck.

Why We Should All Love Taylor Swift

Any artist who has ever dealt in any way with a record label understands the importance of leverage. A new and essentially unknown artist, almost regardless of talent, has little room to obtain a more favorable deal than the one initially offered. As artists prove their commercial appeal, of course, and provide profits to their labels, their negotiation capital rises. The second contract, or in some cases revisions to the first, can be much more lucrative: financial success provides the necessary leverage for a more beneficial deal. In almost all cases, however, certain demands by the artist such as ownership of the Masters remains off the table. Moreover, those successful artists tend to use that leverage to gain a better deal for themselves. While there is nothing wrong with that, Taylor Swift has recently set the bar much higher.

 At the end of 2018, Taylor Swift left Big Machine Records and signed with Republic Records, a subsidiary of Universal Music Group (“UMG”). While acknowledging that artists with Swift’s level of success are few and far between, the deal she and her team negotiated with UMG is exceptional, both from Swift’s perspective as well as the perspective of her fellow label mates. Overwhelmingly, ownership of the Master Recordings belongs with the label and is not even up for negotiation. Ownership of the Sound Recording Copyright (“SR”) provides the owner with control over how and where the music is used, especially its use in television, film or any other synchronization with a visual component. In maintaining such control, the rights holder also reaps the financial benefit. Swift’s deal with Republic allows her to retain ownership of the Master Recordings and, therefore, control the use of the sound recording. This, in essence, allows her to double her revenue from any synch licenses she makes as well as to maintain creative and artistic control. Swift, however, used her leverage and negotiation capital to obtain additional concessions from UMG which would benefit other artists under the UMG umbrella.

Specifically, UMG owns a stake of approximately 3.5% in Spotify, estimated at a value in excess of $800 million. Swift and her team made it a condition of her deal that should UMG sell its Spotify shares, then UMG must distribute a share of the proceeds to all artists on its roster. Such a condition is presumably based upon the premise that the value of Spotify has increased due to the creativity of artists and that currently an absurdly, disappointingly low royalty finds its way back to the artist’s bank account. That Swift would use her negotiation capital to bargain for the benefit of others is not just refreshing, but sets an example for others.

While few artists have the leverage of Taylor Swift, the example she sets in contract negotiations with labels is inspiring. May those artists of similar standing emulate her and may those on the way up aspire to her message and approach. Whether you are a fan or not go download a Taylor Swift CD on the Republic label. If you are an artist with significant leverage, make it your mission to match Taylor Swift’s approach. Doing so makes this business better for all.

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