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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you inside an analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes at the Bloomberg Law Podcast, on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. Katy Perry joins

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Speaker 1: a long list of music stars like George Harrison, Michael Bolton,

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Speaker 1: and Robin Thicke who have been found guilty of stealing songs, or,

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Speaker 1: to phrase it in a nicer way, guilty of copyright infringement.

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Speaker 1: A jury awarded Christian rapper Marcus Gray two point seventy

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Speaker 1: eight million dollars. They found that Perry's hit song dark

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Speaker 1: Horse Let's read You're good to come to me, but

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Speaker 1: you better choose. I'm keep the thing copied gray song

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Speaker 1: Joyful Noise, a Christian a few years trick to Reagan

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Speaker 1: face but failed in my fears. And I heard a

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Speaker 1: lot of berks that have tickled many ears. Joining me

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Speaker 1: is intellectual property litigator Terence Ross, a partnered captain muchin

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Speaker 1: so Terry. Marcus Gray claimed that Perry's song stole his

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Speaker 1: underlying beat. What did the jury have to find to

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Speaker 1: come to its verdict. Is it just listening to the

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Speaker 1: two songs or is there more? Well, they have to

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Speaker 1: find two things. They first have to find that the

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Speaker 1: defendants had some access to the copyrighted song, in other words,

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Speaker 1: that there was an opportunity for them to have heard

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Speaker 1: the song or be aware of the song. And in addition,

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Speaker 1: they also had to find that there was a substantial

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Speaker 1: similarity between the beats in the two songs. Now, one

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Speaker 1: of Perry's defenses gets a little complicated. It's a claim

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Speaker 1: that Gray's copyright registration for the beats wasn't valid, and

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Speaker 1: this was only about the beats. Fundamentally, the jury and

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Speaker 1: the court held was that the song had copied the

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Speaker 1: beat of Joyful Noise. So yes, it was limited to

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Speaker 1: the beat, and the copyright validity argument was a technical

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Speaker 1: argument as to whether or not that has been properly registered.

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Speaker 1: That was ruled on by the court, and so the

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Speaker 1: jury was really left to decide the fundamental issue as

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Speaker 1: to whether or not there was a substantial similarity between

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Speaker 1: the beats and the two songs. So you had professional

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Speaker 1: musicologists testifying about whether the two songs were similar. Why

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Speaker 1: have them testify at all? If the Verdice is based

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Speaker 1: on the decision of a jury of Lehman, and is

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Speaker 1: that what it should be a jury of Lehman. Well,

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Speaker 1: that's the question that we're increasingly hearing. You had the

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Speaker 1: Blurred Lines song with a very substantial verdict awarded. Just

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Speaker 1: recently led Zeppelin Stairway to Heaven was attacked, although led

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Speaker 1: Zeppelin prevailed in that lawsuit, And the question being raised

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Speaker 1: in legal circles that are involved with music copy it

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Speaker 1: is can we really entrust this decision to jury any

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Speaker 1: longer the instruction of the court gives them is under

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Speaker 1: the totality the circumstances, do you detect a substantial similarity

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Speaker 1: between the two songs, specifically the beats and the two songs?

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Speaker 1: And that's a pretty broad writ to give to lay

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Speaker 1: people with no musical background, when it's generally accepted by

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Speaker 1: musicologists that all songs develop and feed off of each other,

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Speaker 1: and a long history of Western music tradition, I've often

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Speaker 1: thought that juries cut celebrities of break when they appear

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Speaker 1: before them. But here Perry testified and even volunteered to

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Speaker 1: sing Dark Horse when there were technical difficulties. So is

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Speaker 1: it no longer the case about juries and celebrities my

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Speaker 1: own personal experience with juries and celebrities, as it depends

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Speaker 1: on the celebrity. It's not in across the board determination

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Speaker 1: one the way or the other. And indeed, this verdict

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Speaker 1: seems to raise some questions about the popularity of Katie

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Speaker 1: Perry amongst lay people. The same with Up and Thick,

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Speaker 1: Whereas with Ledge Zeppelin, jury trout was clear to any

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Speaker 1: observer that the presence of several of the band members

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Speaker 1: in the courtroom made a huge difference in the outcome there.

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Speaker 1: So I think it's a celebrity by celebrity impact and

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Speaker 1: it depends on how that particular celebrity is viewed by

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Speaker 1: lay people. Interesting, so much for star power, I guess.

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Speaker 1: Another point that I thought was interesting was that this

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Speaker 1: was a collaboration. Her song dark Horse was a collaboration

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Speaker 1: with her producer as a songwriter and a rapper. So

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Speaker 1: does the jury verdict mean that they collaborated on copying

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Speaker 1: this song as well? Well, that's what the jury verdict suggests,

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Speaker 1: and particularly the award, which a portion amongst the different

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Speaker 1: defendants amounts. And I think this is the real problem here,

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Speaker 1: at least for Katie Perry. My understanding is that with

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Speaker 1: these part rap part pop songs, the producer often comes

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Speaker 1: to the performer, in this case Katie Harry with the

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Speaker 1: beat now which she is then adding her overlay to

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Speaker 1: the beat. And so I have to raise the question

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Speaker 1: why should she be liable for copyright infringement if the

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Speaker 1: core of the alleged infringement is the beat and that

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Speaker 1: is typically brought to her or any performance by the producer.

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Speaker 1: In the modern music game, this was a Christian rap

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Speaker 1: song and Terry claims she never heard it. So this

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Speaker 1: brings up subconscious plagiarism, sort of what happened to George

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Speaker 1: Harrison with his song My Sweet Lord and the Chiffons.

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Speaker 1: He's so fine, Yeah, George Harrison is one of the

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Speaker 1: best examples of that. It is not a sufficient defense

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Speaker 1: to say I didn't hear that or I don't remember

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Speaker 1: hearing it as she did. If the plaintiff, the copyright owner,

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Speaker 1: can show that there was enough airplay of the song

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Speaker 1: that it was out there, then an argument can be

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Speaker 1: sustained that there was some form of subconscious copying and

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Speaker 1: the words she heard it didn't even realize that she

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Speaker 1: was hearing it, just became ingraining or subconscious, and then

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Speaker 1: later during her creative process, her subconscious recalled this and

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Speaker 1: input it into it, so that the courts have blessed

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Speaker 1: that theory, which has always struck me as odd. And

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Speaker 1: it's particularly odd here where she testified to believe that

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Speaker 1: she did not bring the beats to the song, the

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Speaker 1: producer did, and yet she got stuck for a hefty

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Speaker 1: chunk of the jury verdict over and subconscious plagiarism makes

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Speaker 1: more sense when it's a song like the Chiffons He's

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Speaker 1: So Fine, which was all over the place, than it

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Speaker 1: is with this song. The other thing is that there

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Speaker 1: was such a big difference between the defense attorneys argued

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Speaker 1: for about three and sixty thou dollars and the plaintiff's

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Speaker 1: attorneys nearly twenty million in thirty seconds. Can you tell

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Speaker 1: me how the jury decided on this amount. Well, it's

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Speaker 1: fascinating these trials because it reveals the dark underside of

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Speaker 1: the music business and how a song will gross an

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Speaker 1: enormous amount of money. But there are all these so

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Speaker 1: called expenses such as her hairstylist, her clothing, her appearances

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Speaker 1: at events, are all deducted from the gross revenues to

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Speaker 1: arrive at a net, which is arguably what the calculation

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Speaker 1: should be split on. And it appears that the jury

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Speaker 1: for the most part um leaned towards the defendants on

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Speaker 1: awarding a lower amount of request it, which may suggest

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Speaker 1: that the jury was uncomfortable with a finding of copyright

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Speaker 1: infringement in the first place, and it may have been

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Speaker 1: a compromise verdict. I find them liabele, but not award

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Speaker 1: a lot. Thanks so much, Terry, This is even more

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Speaker 1: fascinating after talking to you. That's Terence Ross, a partner

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Speaker 1: at Captain Newton. Thanks for listening to the Bloomberg Law podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. I'm June Brosso.

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Speaker 1: This is Bloomberg