
Katy Perry's Dark Horse Lawsuit Makes Waves in Music Industry - aaronarduino
https://www.cbc.ca/news/entertainment/dark-horse-music-industry-1.5235743
======
dwohnitmok
I wonder at what point similarities with past works becomes inevitable.
There's only a finite amount of original music out there, especially if you're
talking about the length of an average riff or motif, leave out a lot of the
more extreme attempts of contemporary art music, and stick to what sounds
pleasing in popular music genres. And the output of number of musical
compositions seems only to be increasing. An interesting short story in this
vein is
[http://www.baen.com/chapters/W200011/0671319744___1.htm](http://www.baen.com/chapters/W200011/0671319744___1.htm)

A bit on the melodramatic side, but explores the same general point.

~~~
52-6F-62
Punk rock would be a minefield. And that's all only come out of the blues
(skipping some historical points) which relies heavily on "standards".

So many of the compositions along that tract are made up of three to five
notes in a limited variety of voicings and arrangements.

I - III - V - IV

Try Johnny Be Goode. Chuck Berry has his reputation but he could have pulled a
move like this a large number of times by now [and somehow hasn't! (don't
quote me on that, though)

I (4 Bars) - III (2 Bars) - I (2Bars) - V (2 Bars) - I (4 Bars)

Or something like that. But there's 90% of the song, repeated over.

~~~
really3452
Obligatory Axis of Awesome - 4 Four Chord Song Exmple

[https://www.youtube.com/watch?v=5pidokakU4I](https://www.youtube.com/watch?v=5pidokakU4I)

~~~
rrauenza
Rob Paravonian's Pachebel Rant I think predates this:
[https://www.youtube.com/watch?v=JdxkVQy7QLM](https://www.youtube.com/watch?v=JdxkVQy7QLM)

------
ericcholis
Good video breakdown: [https://www.youtube.com/watch?v=0ytoUuO-
qvg](https://www.youtube.com/watch?v=0ytoUuO-qvg)

~~~
gregmac
The video is absolutely worth watching, but one of the more relevant bits is
this:

> [...] in Dark Horse it's just the background texture for one of the verses.
> It has the same musical function as a chord progression or a drum groove: it
> serves to highlight the melody but it's not the song itself. Up until this
> point it seemed like only melodies could be copyrighted in the composition
> of song, however the recent court decisions surrounding Robin Thicke's
> Blurred Lines and Marvin Gaye's Got To Give You Up has thrown all of this
> into question.

> This is why the lawsuit demanded a trial by jury: because they wanted to
> confuse non-musician non expert jurors with fancy music theory jargon.

He also specifically calls out the expert witness, saying:

> You're doing it in a fairly intellectually dishonest manner because I
> sincerely doubt you would make the arguments that you made in court at [an]
> academic conference for example, or you wouldn't write them down in a
> scholarly article, because your academic peers would absolutely eviscerate
> you for saying some of those things -- and yet in front of a jury of your
> peers you said them.

~~~
sitkack
I don't understand why a Jury of Peers [1] wouldn't be comprised of domain
experts and not just random people off the street. And it seems like having
domain knowledge is likely to get one NOT selected for jury duty. Can any
lawyers chime in on this (even armchair hn lawyers)?

[1] [https://criminal.findlaw.com/criminal-procedure/what-is-a-
ju...](https://criminal.findlaw.com/criminal-procedure/what-is-a-jury-of-
peers.html)

~~~
ModernMech
I always assumed it's peers as opposed to superiors. I.e. Your jury is not the
king and queen but other commoners like you.

~~~
srfilipek
A peer of the defendant?

Because the defendant was a musician in this case.

~~~
sarah180
The standard of "substantial similarity" in copyright law depends not on how
an expert would see things, but on how a reasonable average person would see
things. Juries are not perfect, but a jury of random people is probably the
most qualified way to determine the question "would average people see these
two things as substantially the same."

Leonard French—a YouTuber and actual copyright attorney—does a good job
covering the legal standards and issues here:
[https://youtu.be/t-tsw6Z4eHc](https://youtu.be/t-tsw6Z4eHc).

~~~
srfilipek
> a jury of random people is probably the most qualified way to determine the
> question "would average people see these two things as substantially the
> same."

A jury of random people can be confused and then convinced by lawyers. That's
the way they like it, and that's the problem with jury selection - they chose
people specifically because they are not knowledgeable.

~~~
fuzz4lyfe
Whats better? Experts that can be purchased? Elected or appointed judges who
owe favors to those who elected or appointed them?

~~~
srfilipek
> Whats better? [...lots of straw-men...]

To start: Not removing jurors simply because they're knowledgeable or have
critical thinking skills.

------
iamben
I posted this the other day. Absolutely terrible, IMO. A minor artist can take
millions from an artist who releases a song with a passing resemblance. You
can hear similarities in SO many songs. And SO many songs are inspired by
others - great art is full of inspiration.

I dread where this ends up.

~~~
aaronarduino
This sort of feels like the start of the music business's version of patent
trolls. I think this verdict devalues music and hampers creativity.

~~~
freehunter
New business model: have an AI generate every chord progression in every
tempo, release the "songs" on your own label, and sue everyone who releases a
song after you.

~~~
trevyn
Is there a legal counter to this? Frivolous copyrighting?

~~~
freehunter
There are tons of legal counters, almost any of which would be a slam dunk
case for having the AI-generated company's copyright revoked and the company
disbanded.

But patent trolls are smart enough to have blazed a trail where you sue small
time record labels that can't afford to fight you in court and are willing to
settle. Any fight that goes to court, you just dismiss the suit to avoid
losing and setting a precedent.

------
ilamont
In the early 1990s I worked for Jimmy Cauty and Bill Drummond's record label,
back when they were dominating the UK and European pop charts as The KLF
([https://weirdestbandintheworld.com/2011/10/20/the-
klf/](https://weirdestbandintheworld.com/2011/10/20/the-klf/)).

One day we received in the mail a cassette tape and a letter from a law firm
representing a composer or publisher (I can't remember which) of a famous
Broadway soundtrack from the 1960s. The letter accused the KLF of
infringement. The cassette contained one of the songs on the Broadway
soundtrack, an instrumental section of which repeated a three note riff that
sounded a lot like the same three-note sequence from one of the KLFs biggest
hits. The rhythms and song structures were otherwise nothing alike.

It didn't seem like an obvious example of copying, and it was quite possible
it was a coincidence or some obscure influence on The KLF or their core
musical collaborators, who would have been youths when the Broadway soundtrack
was released.

"Are you going to fight this?" I asked the label's president.

The answer: "No."

From The KLF's perspective, it wasn't worth a long, expensive legal fight they
might lose. The KLF had been burned before for rampant unauthorized sampling
in a previous incarnation of the band called The JAMMs, as described here:
[https://en.wikipedia.org/wiki/1987_(What_the_Fuck_Is_Going_O...](https://en.wikipedia.org/wiki/1987_\(What_the_Fuck_Is_Going_On%3F\))

Also, the label president didn't say it, but potential bad press could have
also been on her mind. At the time, the KLF had the British music press eating
out of their hands, and a public legal fight could change the narrative of the
KLF as being brilliant pop iconoclasts to something less favorable.

------
AS126
> "If you can be liable for allegedly copying a three-note phrase, I think
> that really dampens the creative output of artists," said Keyes.

I don't like where this is going. Those songs have key differences in
percussion and partly in melody too, as explained in the graphic. This sets an
interesting precedent, to say the least.

~~~
ptah
in the graphic 16 notes are green (meaning the same) so saying 3 is not
accurate at all

~~~
IfOnlyYouKnew
Three _different_ notes. Repeating the same note is _rhythm_ , but the
allegations are about _melody_.

~~~
ptah
three different tones, but you are ignoring the most important aspect of
modern music: rhythm. a modern music piece uses only a few different tones

------
tzs
Just listening to both songs once, I didn't notice anything close.

What I'm curious about are the cases where it is extremely obvious that one
song is based on another, and no one says anything.

Case in point: "Jolly Roger" by Adam and the Ants [1], from 1980. This is
extremely similar to "The March of the MacGregors" by Ennio Morricone, from
the 1966 film "Seven Guns for the MacGregors" [2].

It's not only the same melody, "Jolly Roger" is also largely the same
arrangement.

[1] [https://www.youtube.com/watch?v=hc_-
vSIy3fY](https://www.youtube.com/watch?v=hc_-vSIy3fY)

[2]
[https://www.youtube.com/watch?v=N5JQ1JTsJ4k](https://www.youtube.com/watch?v=N5JQ1JTsJ4k)

------
camjohnson26
Anecdotal, but I’m a big fan of Lecrae’s music and Joyful Noise was probably
the biggest hit in Christian hip hop of the time. First time I heard Dark
Horse on the radio I laughed and told a friend that they totally ripped off
Joyful Noise, it was very obvious since that riff is the focal point of the
song. Don’t know if I agree with the lawsuit but the similarities are there.

Joyful Noise: [https://youtu.be/jTLeHuvHXuk](https://youtu.be/jTLeHuvHXuk)

Dark horse: [https://youtu.be/0KSOMA3QBU0](https://youtu.be/0KSOMA3QBU0)

------
acomjean
This is direct fallout from the Marvin Gaye Estate/ Robin Thicke "blurred
lines" lawsuit mentioned in the article.

Those songs aren't that similar (the jury didn't even hear both songs if I
remember correctly), and after the verdict wasn't corrected on appeal the
stage was set for more of these. The "easy money" angle of results (5 million
to the estate of a singer for a 70s song.... just get lawyers).

It seems likely we are going to see more and more of these lawsuits. Sort of a
sad state.

------
segmondy
What a schadenfreude for me. I see most people are saying it sucks, I for one
can cheer on. Screw the music, movie and media industry. Tons of laws and
garbage we suffer on the internet today is because of them and their lobbying
efforts. There approach towards everything has been litigation hell, let them
feel their own pain.

~~~
EvanAnderson
While I share your amusement that the publishing industry is hoist with their
own petard creators will inevitably be targeted as a result of this decision.
That really troubles me. I see this decision as a weapon for the publishing
industry.

"Pirates" have been held-up as being publishers' enemies. I think this
decision will serve to make independent creators a bigger target. Machine
learning-based analysis of music along w/ this decision will create a distopia
where independent musicians are hit with automatically-generated copyright
infringement extortion letters. It'll be similar to the letters "downloaders"
received a few years ago, except that the infringement will be the act of
creation rather than "consumption".

My hope is the lunacy of this decision will spark more conversation about
reigning United States copyright back into some semblance of its original
form. I've been pining for that conversation since the creation of the DMCA,
though, and it shows no sign of coming. The litigation wasteland that this
decision will create might make that happen, but, then again, it might just
serve to cement the idea that you can't be a legitimate content creator w/o
going thru the traditional publishing system (and all the rent-seeking that
comes with it).

------
dnjdrbdhdbs
The problem is using juries for this. Music copyrights should be adjudicated
by a panel of professional musicologists, funded by a cut of the awards. That
way there’s at least some consistency. The concept would extend to other
disciplines.

Of course a purely functional improvement to governance is a political
nonstarter in today’s environment.

~~~
human20190310
It was the opinion of a professional musicologist, presented to a jury, that
resulted in the lawsuit being successful. At least with a jury there's a
chance of calling bullshit, even though it did not occur in this case.

~~~
xxs
Jury in pretty much any case is a subpar solution. However, patent or
copyright ones are total bonkers to be decided by jury panels.

Leaving justice outcome to chance is rather weak way to 'benefit the society'.

------
georgeecollins
I wonder if you could make an AI program to make a bunch (millions)of unique
melodies a minute or less and publish them somewhere like YouTube. Then just
scan new hit songs and see if they somehow copy what your computer generated..

------
velcrovan
On the plus side, looking forward to the coming total legal meltdown of
country music

~~~
mighty_bander
To say nothing of reggae, dubstep, etc. etc.

~~~
faissaloo
Noise should be fine tho

~~~
coldtea
Actually noise is the most homogeneous of all...

------
jordigh
How was Flame able to demonstrate that they heard the song before?

Remember that independent discovery is a valid defense a against a copyright
infringement claim. Katy Perry's legal defense was that nobody had ever heard
Flame's music. The CBC article doesn't seem to indicate how the jury was
convinced that Katy Perry's team knew of the other song, except that
"obviously they heard it because it was awarded a Grammy". Huh? Is that all it
took?

------
120bits
I was wondering, does Shazam can differentiate well between these two songs?
I'm not entirely sure about the internal working of it, but was curious to
know how these pattern recognition apps can help in this.

Also, reminds me of the Silicon Valley where Richard was able to disproof
Patent troll by using his music/search app.

~~~
lukecameron
The technique you're looking for is Acoustic Fingerprinting [1]. There's a
pretty easily understandable python implementation[2] of it if you're
interested. In Shazam's case it is looking for peaks in the sound's
spectrograph, so I don't think it would likely confuse two songs based on
melody alone. It would have to be very close in rhythm, melody, and possibly
even be in the same key.

[1] -
[https://en.wikipedia.org/wiki/Acoustic_fingerprint](https://en.wikipedia.org/wiki/Acoustic_fingerprint)
[2] -
[https://github.com/worldveil/dejavu](https://github.com/worldveil/dejavu)

------
sudosteph
I would be more sympathetic to Katy Perry's case here if I could ever get past
the fact that a major part of "Firework" sounds so much like Erasure's
"Always".

I'm all for creative freedom, but massively profitable pop music labels
shouldn't be able to just crib the essence a catchy melody and make it the
whole basis of their song just because the person who wrote the original
version wasn't that popular. If it really was a coincidence in this case, then
it's unfortunate, but it isn't life-changing to someone as well-off as her. If
the original composer really was copied from though, actually being credited
and received recognition as deserved, could be life-changing, so I don't blame
him for suing.

------
1290cc
Incredible to think that rap music would never have existed or become a
popular genre if this law existed in the 80's and was weaponized against
artists.

Ultimately this will strengthen a labels position as signed artists will be
"allowed" to be influenced by songs the record label already owns.

Anyone else will be stuck in court.

There's a fantastic documentary on this called Copyright Criminals that breaks
down this area and just how intertwined the entire music industry is as
artists are naturally inspired by each other. The conclusion from this film
was that innovation and creation will then come from places where these laws
do not exist.

------
hedora
Does this mean Axis of Awesome will finally get paid for Four Chord Song?

[https://m.youtube.com/watch?v=5pidokakU4I](https://m.youtube.com/watch?v=5pidokakU4I)

------
beautifulfreak
A similar case involving Kraftwerk was decided recently.
[https://www.billboard.com/articles/business/8524267/kraftwer...](https://www.billboard.com/articles/business/8524267/kraftwerk-
european-court-justice-ruling-metall-auf-metall) "European Court Rules In
Favor Of Kraftwerk In 20 Year-Long Copyright Dispute"

------
redm
This reminds me of Under Pressure and Ice Ice Baby, the latter also having to
pay up.

~~~
seanmcdirmid
In that case, the baseline was directly ripped off, it wasn’t just “sounded
similar”, it was an actual sample.

~~~
goda90
If sampling to create new art were better protected, then cases like this
wouldn't even come up. The documentary "Good Copy Bad Copy" was talking about
this 12 years ago

~~~
rtkwe
Yeah I think we're long overdue to reevaluate what copyright means in music. I
think it should be much closer to how we treat fashion where anything but a
direct rip off is 100% fair game (and that is even more about trademarks
because the actual design can't be copyrighted).

------
ertemplin
This is literally how musicians create new music. When I was in high school
jazz band, every improvisation had pieces of popular jazz songs in it. That's
just how it works.

------
Yaa101
This is obvious a case of "be careful what you wish for" the music industry
has itself to blame for this. I hope it will get more ridiculous over time.

------
Marazan
After getting away with ripping off "All the things she said" it must be
pretty galling to get dinged by this one.

------
JustSomeNobody
I don't know much about music, but there's only so many ways to arrange notes
and of those ways there are far fewer ways to arrange them that sound ...
pleasing to the ear.

What happens when all the pleasing ways are copyrighted and owned by some sort
of Pantone for music?

Good grief what are we becoming?

------
xealgo
Good artist copy. Great artist steal. However, in this case, I'm hard pressed
to believe it's a case of either.

~~~
faissaloo
I think the main problem is that the artist would have to at least be good.

------
didibus
What about sampling and remixes?

------
unethical_ban
There is only so much someone can do with a particular set of notes and
instruments. It is sad for the arts that a three note riff is the basis of
lawsuits.

------
ptah
16 notes in the same sequence? that's too big of a coincidence

~~~
vortico
It's not 16 notes but three notes. C B A. The first note is repeated for a
measure, the second is repeated for a half note, and the third is played once.
Yes, it's undoubtedly a coincidence. See
[https://i.cbc.ca/1.5235857.1564861522!/fileImage/httpImage/i...](https://i.cbc.ca/1.5235857.1564861522!/fileImage/httpImage/image.jpg_gen/derivatives/original_780/dark-
horse.jpg)

~~~
ptah
the repetition is super important. in modern music the rhythm is more
important than the variety of tones. the same rhythm and the same tonal
distance is too big to be a coincidence

~~~
vortico
How large do you think the design space is?

Technically, it's enormous, maybe 8^15 possible melodies.

But what about _good-sounding_ melodies? That drastically reduces the space.

What about _memorable_ , good-sounding melodies? Most melodies aren't catchy,
so that limits the space some more.

What about _culturally-appropriate_ , memorable, good-sounding melodies? It
likely wouldn't make sense to use a Turkish opera melody in a pop song. Genres
typically encompass a small space of melodies (e.g. Blues, Boogie Woogie).

What about such melodies that follow a particular rhythm, or match the
vocalist's range, or that follow a desired chord progression?

After all this is considered, you're probably down to only a million
combinations. But there are a billion songs out there...

~~~
ptah
the range of notes in pentatonic scale is only five. but the rhythms (the
important part of modern music) have a lot more combinations. katy perry's
writers used the exact same rhythm with the same notes, which is highly
improbable

------
povertyworld
Finally, these major label "artists" have to compensate the creatives they
steal from.

~~~
SketchySeaBeast
Which "creatives"? Cause it looks like he ripped it off himself - he should
probably get sued.

[https://www.youtube.com/watch?v=0ytoUuO-
qvg](https://www.youtube.com/watch?v=0ytoUuO-qvg)

