This study undertakes a qualitative content analysis of YouTube videos on the Flame v Perry ‘Dark Horse’ case in order to analyse public discussion regarding music copyright law (n = 59).
Results show that YouTube creators are engaged with complex issues in copyright law. It is found that disagreement exists over how to apply the ‘substantial similarity’ test and that there is a widespread concern that copyright law is becoming excessive in its protection of common musical elements, which should be available to all, are. Results indicate that those from a music background are particularly concerned with these issues and that this is reflected in their more likely decision of no copyright infringement in this case. Concerns with the ability of the law to provide unbiased and neutral decisions were expressed by many.
Overall, the results indicate that copyright law is in a challenging position and that there is a need to rebuild trust in the ability of the law to distinguish genuine copyright claims from frivolous charges.
Copyright law has increasingly been in the public eye due to several high-profile music cases. These have notably included the charges made against Pharrell Williams and Robin Thicke’s ‘Blurred Lines’ by the estate of the late Marvin Gaye,1 which has since led to a plethora of large-scale cases, including Jessie Braham suing Taylor Swift for her lyrics in ‘Shake it Off’,2 Marcus Gray suing Katy Perry for copyright infringement in ‘Dark Horse’,3 and more recently the copyright case against Ed Sheeran’s ‘Shape of You’.4
The ‘Blurred Lines’ case received high levels of attention due to not only the prominent status of the musicians involved but also the general criticism of the case.5 A jury unanimously held that ‘Blurred Lines’ did infringe upon Marvin Gaye’s ‘Got to Give it Up’, with the final damages award held at $5.3million. Thicke had acknowledged in prior interviews that he did take inspiration from Gaye’s song, specifically stating that he wanted to make something similar to its groove.6 The dissenting judgment from Justice Nguyen reflects many of the main concerns that the final judgment unfairly punishes ‘inspiration’ as ‘copying’ and allows the ‘Gayes to accomplish what no one has before: copyright a musical style’.7 The case has been described as ‘frivolous’8 and setting a dangerous precedent, which creates a hindrance rather than a protection for artists.9 Some have challenged whether too much in damages were rewarded,10 with others arguing that the current test in copyright law of ‘substantial similarity’ is too subjective and confusing.11
As it has been noted, the foundational nature of copyright has been constantly disputed.12 It faces numerous issues including widespread non-compliance and multiple ongoing debates regarding what its justifications are.13 While the basic purpose of copyright law to protect and encourage creativity is generally undisputed, there are important questions regarding how the law should do so and to what extent.14 This has led to arguments that a justificatory pluralist toolbox is needed to take into account the diverse stakeholders and competing interests involved.15 With regard to music in particular, the modern context of how society uses and engages with music challenges the adaptability of our current legal provisions. Particular instances referred to include the use of music in political campaigns16 and the increasing complexity of music production today, complicating the question of ownership.17
This article focuses on the particular question of how the public perceives the current state of copyright law particularly in the music context. This is an important question that will shed light on how the public engages with these debates, highlighting what they perceive to be some of the main issues and challenges.
A recent study shows that the public is capable of engaging in deliberative discourse regarding complex issues in copyright law.18 Another study demonstrates how YouTube can be used as an effective research tool to gauge public reaction to copyright infringement strikes.19
This article will similarly utilize a content analysis method to analyse public perceptions over the ‘Dark Horse’ copyright case. This case is chosen for its relevance to the current debates regarding copyright protections over music and also because of its interesting legal procedure, which involved the overturning of a jury’s verdict.
The ‘Dark Horse’ case was brought in 2014 by Christian rapper, Marcus Gray, from now on referred to by his stage name of Flame, who argued that Katy Perry’s ‘Dark Horse’ copied an eight-note ostinato from his song ‘Joyful Noise’. A jury found that there was copyright infringement, awarding $2.8 million in damages. This was overturned by Judge Snyder in a US District Court, who distinguished this case from ‘Blurred Lines’, stating that the elements did not comprise the entire musical composition of the song and were made up of common building blocks (CBB) of music, which cannot be protected.20 Under US copyright law, a two-part test for substantiality is used. First, the extrinsic test is applied by the court to decide if there is a ‘similarity of ideas and expression as measured by external, objective criteria.’ If the extrinsic test is passed, the case is then passed to the jury who must consider the intrinsic test. This asks ‘whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar’.21 Judge Snyder argued that the previous court had incorrectly found evidence of the extrinsic test, and for this reason, it should not have reached the jury in the first place. This decision was upheld following an appeal in the Ninth Circuit