A jury previously found that Perry’s song "Dark Horse," which spent four weeks at No. 1 on Billboard’s Hot 100 in early 2014 and was performed at the Super Bowl, was so similar to a song by Flame (Marcus Gray) called "Joyful Noise" that she and her record label would be on the hook for $2.78 million. Throughout the trial, Perry’s attorneys argued that the beat in question was too basic to be reasonably copyrighted — something they echoed in the statement released by attorney Christine Lapera.
“The writers of ‘Dark Horse’ view the verdicts as a travesty of justice,” the statement reads (via Variety). “There is no infringement. There was no access of substantial similarity. The only thing in common is unprotectable expression — evenly spaced ‘C’ and ‘B’ notes — repeated. People including musicologists from all over are expressing their dismay over this.”
“We will continue to fight at all appropriate levels to rectify the injustice,” the statement concludes, hinting at an expected appeal to the ruling.
In addition to Perry, the statement was issued on behalf of her “Dark Horse” collaborators Dr. Luke (Lukasz Gottwald), Cirkut (Henry Walter), Max Martin (Karl Sandberg), Juicy J (Jordan Houston) and Sarah Hudson.
While the plaintiff in the case is happy for now, Perry’s team is making it clear that they plan to continue fighting the verdict. However, their larger point about the bar for copyright infringement being lowered for musicians could have wider implications on the music industry.
Plaintiffs in copyright cases like Gray must prove that the artist who stole from them had a reasonable opportunity to hear a song that was widely disseminated, a principle lawyers simply refer to as "access." However, the legal definition for that kind of access has changed as streaming music continues to grow.
The question, as other issues at Perry's high-profile trial did, suggested that technology may be outpacing copyright law, and that more David vs. Goliath victories for relatively obscure artists like Gray over superstars like Perry may be the result.
"The law around it is a two-pronged test, access and substantial similarity," Michael Kelber, a Chicago attorney who specializes in intellectual property and technology, told The Associated Press on Friday. "The fact that the access prong is so much easier to show, that can be some potent evidence for a jury."
Kelber said the Perry decision may show that "the floodgates are starting to open on these cases."
"It's not hard to get thousands of watches and likes," he said.
Traditionally many cases like this have been thrown out simply because the plaintiff had no way of proving the artist heard their song, unless they had given them a tape, opened for them in concert or had some similar proof.
"Whereas 20 years ago, where everything was controlled by the music industry, now anybody who wants a song can hear it, or stumble across it somehow," said Timothy Foster, a New York attorney who works on copyright cases including a current lawsuit where a singer is suing Carrie Underwood over her "Sunday Night Football" song. "It's easier to argue that they could have. Maybe Pandora played it for them on one of their random playlists one day."
Foster said it's not even "required that they actually knew of the song, but they may have subconsciously replayed it, even if they didn't know or understand they were doing that."
"The wider spread something is," Foster said, "the easier it is to show that they either did or could have had access to it."
Neither Kelber nor Foster is involved in the Perry case.
The Associated Press contributed to this report.