Why the Katy Perry/Flame lawsuit makes no sense

earlier this week a federal jury found that the 2013 Katy Perry hit Dark Horse infringed on the copyright of Christian rapper flames 2008 song joyful noise now the two songs don't share the same melody nor the same chord progression or baseline or drum groove but they do share a similar Cynthia ostinato or a repeated melodic fragment that helps support the main melody we only hear this ostinato and the verses for Dark Horse but we hear it throughout the joyful noise it's a descending phrase in staccato quarter notes that starts on the mediant and the key of a-minor the third degree of the scale and descends down to the tonic it sounds like this Dark Horse's ostinato sounds suspiciously similar it's in the key of b-flat minor but it's been transposed here to the key of a minor way I'm sorry about that that's actually not the Katy Perry that's the Adagio from Bach's violin sonata in F minor this is Katy Perry's Dark Horse wait sorry got confused again that's the traditional Christmas Carol jolly old Saint Nicholas this is the Katy Perry actually I'm sorry I keep getting confused that's the spiritual go down Moses this is the Katy Perry wait a second I'm so sorry that's actually a Kirika foo bass theme to 1954 is Godzilla this is actually Katy Perry's Dark Horse so the question is is this similar enough to joyful noise to legally be the same piece of music the jury seems to have ruled that that is the case now if we look at the text from the original lawsuit we don't find any mention of any specific musical elements that Dark Horse allegedly elicits Lee took from joyful noise instead we get several pages of alleged damages and also weirdly several separate complaints about witchcraft and pagan imagery which have nothing to do with the song its lyrics or its composition all the analysis and music theory that the plaintiff brought to the table came from one source their expert witness musicologist Todd Decker who is the chair of the music department at Washington University in st. Louis according to Decker Dark Horse is at its essence the same composition as joyful noise because of a similar synth riff that shares quote five or six points of similarity including pitch rhythm texture pattern of repetition a lot of shape and Tambor Decker took care to emphasize the similarity of tambourine tone color noting the synthesized sounds create a pingy artificial sound in the beat Decker is not a sound engineer he's a musicologist who is trained in 20th century pop film music and 18th century European art music but even he should be able to tell the differences in Tambor between the two ostinatos because they're in fact quite distinct joyful noises ostinato is articulated with a sawtooth waveform with a very distinct portamento or glide between pitches that distorts the pitch transients every time the melody switches between different scale degrees the sounded Dark Horse's riff his airier and breath here almost like it's imitating a vocal sample but that doesn't matter though because you can't copyright town color otherwise somebody could just own the sound of piano wait wait wait a second hold up hold up you can't do that you can't do that that's copyrighted wait no I wasn't playing any copyrighted song I got the song it was the tambour that you're using the sound of piano has been copyrighted so if you want to play that song you have to use a different sound all right thanks Todd Decker which is unfortunately the implication of this case but we're getting ahead of ourselves what are the pitch similarities between the riffs well they share a similar descending melodic arc starting on the third degree of the minor scale and descending down diatonically by step dark horse ends on the fifth scale degree of the dominance and joyful noise ends on the tonic on its first repetition although on its second repetition it descends down to what sounds like the sixth degree of the minor scale however because of the extreme portamento the pitch identity is somewhat masked on that final note Charlie Harding of Vox is transcribed as scale degree five potato potato both riffs use staccato quarter notes and descend stepwise and a minor key in a similar way but the same thing could be said about those examples that I played at the beginning like the bah and go down Moses despite this Todd Decker asserted that the descending melodies of both ostinatos are unique I have not seen another piece that descends in the way that these two do interesting check this out this was a short melodic phrase taken from the 1927 tune old man River from showboat written by Oscar Hammerstein and Jerome Kern the lyric that's paired with this phrase is is soon forgotten which seems appropriate because Todd Decker seems to have forgotten this phrase despite the fact that he wrote a book on the song Old Man River and mentioned this phrase nine times in the book granted this lyric is not a repeating ostinato and the context is wildly different but the melody descends in the exact same manner as the riff from joyful noise probably the most closely related ostinato to joyful noise comes from 1984's moments in love' from the english synth-pop band art of noise [Music] the sense that I've been using throughout this video was actually sampled directly from that song is actually an entire body of work that's been built around sampling this quarter note ostinato originally found in moments of love it's been sampled a hundred and twenty times by various hip-hop artists and you can hear a similar idea in 2007's this is why I'm hot which is most likely where flames producer got the idea for joyful noise [Music] so we're gonna really hung up on this one synth rift because 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 musician and copyright lawyer Charles Cronin recently wrote that until judges recognize and curb this perfidious or perhaps merely witless conflating of sound and music by expert musicologists playing to the sympathies of bewildered jurors we can expect the continuing blitz of Meritus claims like this one and the deleterious constraints and ambiguities they impose on popular musicians in the American music industry 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 jargon that was provided by their expert witness mr. Todd Decker Todd let's take a walk listen man I know you're just trying to get paid and I totally respect that we all are and I hate the fact that I have to defend Katy Perry and all of this it can be a bit of a culture vulture but man think about what you did here you convinced a jury that the idea of quarter-notes descending in a minor scale from the third degree originated in 2008 with Christian rapper flame like you testified under oath that this idea was to him like there's only a certain number of notes that can be recombined in musical compositions and I think it's it's a dangerous precedent to say that somebody can own such a specific piece of our shared musical language imagine if somebody or some corporate entity could own a word or a phrase what kind of corporate capitalist hellscape would that rushar in fortunately that dystopia is not quite here yet but wasn't it taught man you're helping bring about the musical equivalent of that dystopia with this court case and 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 a like 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 these are non experts these aren't musicians and they were confused by your jargon and the precedent that's set by it is kind of dangerous and I hope that you are paid well because you kind of sold us all out on this [Music] Oh [Applause] please

Channel: Adam Neely

Views: 3,687,316

Rating: 4.8990035 out of 5

Keywords: adam, neely, jazz, fusion, bass, guitar, lesson, theory, music

Id: 0ytoUuO-qvg

Length: 8min 54sec (534 seconds)

Published: Fri Aug 02 2019

Reddit Comments

[u/Breakfast_Sausage]

This video both confirms and rejects my notion that I know anything about music theory.

[u/Johbros]

How long till somebody tries to copyright a musical key? This stuff is getting ridiculous.

[u/jork41989]

I thought this was settled ages ago with this gem

[u/SCHOJO]

Whoever invented the blues is about to be a billionaire. /s

[u/Atheist_Mctoker]

I'm so glad a music major got in on this. Those defense lawyers must have really blown their load to not be able to get someone like this to explain why the lawsuit had to basis for copyright infringement. I assume it'll be corrected in appeals after they show the judge this video.

[u/_aidan]

I love the manner in which he broke down the technical jargon to my level. I definitely think I would have gotten fooled had I been in that jury.

[u/twitch_qteep]

All of these lawsuits are making the music industry seem like such a joke. So many higher ups just want to stretch every dollar they can and they dont give a shit about the music.

[u/Mathesar]

I'd like to hear Todd Decker's response to this. The ruling will certainly be appealed and thrown out anyway.

[u/calaber24p]

This is why I truly dont believe in a jury of our peers. I dont know anything about music, the jury probably knew nothing about music, so why do they decide the outcome? Its the same thing with most cases. I dont feel like a regular person knows enough about the law and is able to put bias aside (this is usually what most attorneys are counting on), so why do they have someone's life in their hands? Its stupid if you ask me.