If Katy Perry loses her ‘Dark Horse’ appeal, it’ll be open season on songwriters: Alan Cross

Katy Perry is seen on June 4, 2019 in Los Angeles, Calif. gotpap/Bauer-Griffin/GC Images

Given what we’ve had to work with here in the West, we’ve certainly been able to create a lot of music.

For centuries, we’ve relied on a standard number of standard pitches arranged as the notes on the chromatic scale. Twelve notes in an octave, then repeat.

All notes are related to each other mathematically. The connections between the notes are a series of ratios — or, as music theorists say, “intervals of a semitone.” Playing notes in certain combinations or patterns reveal things like chords, keys, melodies, harmonies and so on.

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These twelve notes are the building blocks of music. Everything from the greatest Mozart opera to the dumbest punk song is constructed from the same basic stuff.

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This might lead you to believe that the number of combinations of notes would be infinite — or at least a very, very big number.

Actually, I have that number. This comes courtesy of writer Frank Behrens, who wrote about this very thing in The Arts Times in 2004.

A quick bit of factoring reveals that there are 479,001,600 possible combinations of those twelve notes if you just played them once each. But if you accept that there are many ways to play one note — whole notes, half notes, quarter notes, eighth notes, sixteenth notes, and thirty-second notes, you end up with a much bigger number, something north of one quintillion (1,000,000,000,000,000,000) possible combinations of those twelve notes.

And if you played a new combination of notes every second, it would take you 33,063,236,360 years — more than twice the age of the universe — to play them all. And again, this is just for non-repeating sequences using the twelve notes of the chromatic scale.

But hang on. You just can’t stick a bunch of tones and semitones together and expect them to sound good. Music has to sound pleasing to the ear and soul, too. So despite this exercise in larger numbers, there is a much smaller number of combinations of notes that work from an artistic and aesthetic point of view.

If there are only so many notes that can be put together in only so many pleasing ways, how long before things start being repeated? And if we narrow things down to the idiom and aesthetics of pop and rock, that number shrinks further still.

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This explains why you might find yourself saying “Hey! That song sounds just like I heard last month!” or “Wait a sec. That guitar riff sounds really familiar. Doesn’t that person realize that someone has already used those chords in another song years ago?”

Lawyers are saying this with increasing frequency. And this is a very, very bad thing.

When a jury ruled that Robin Thicke’s Blurred Lines infringed on Marvin Gaye’s Got to Give It Up On based not on common notes but a common vibe and feel, I predicted that this would be the start of ambulance-chasing lawyers ringing up acts offering to sue the writers of big hits for copyright violations. Sadly, I appear to be right.

Ed Sheeran, Sam Smith, Miley Cyrus, Lil Nas X, Mark Ronson and Bruno Mars, Led Zeppelin, and a number of others have been hit by copyright claims thanks to relaxing standards of proof. Just this past Thursday, Lady Gaga was accused of stealing her Oscar-winning song Shallow by a singer no one has ever heard of. Steven Ronsen says Shallow has a progression of three notes — G, A, B, which he used in a 2012 song entitled Almost, which has had fewer than 300 streams on SoundCloud over the last five years. Gaga is rightly calling this a “brazen shakedown.”

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For the last hundred years or so, copyright lawyers would look at things like lyrics and melody but ignore the abstract stuff like feel, beats/rhythms, and other intangibles of a song. But when US$5 million was awarded to the estate of Marvin Gaye, the game seems to have changed forever. The number of similar cases has exploded, often with ridiculous results.

Take the recent Katy Perry trial. She was sued by a Christian rapper named Flame (real name: Marcus Gray) who alleged that larger portions of her song Dark Horse infringed upon his 2008 recording Joyful Noise. When the dust cleared, Perry, co-writer and producer Dr. Luke, five collaborators, and her record company, were ordered to pay US$2.78 million in compensation. (It could have been worse. Flame’s lawyers asked for US$20 million in damages.)

There is no doubt the Dark Horse and Joyful Noise are similar. Check them out for yourself.

But consider what we actually hear in these two songs. They don’t share the same melody, the same chord progression, bass line, or beat. Everything revolves around the repetition of four notes called an ostinato (a melodic fragment that is repeated that supports other portions of the song) which is the source of the similarity. However, while Dark Horse uses the progression of Db, C, Bb, and F, four different notes are used in Joyful Noise. The jury seems to have been convinced that the idea of descending quarter notes on a minor scale is the exclusive and sole property of Flame.

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That’s right. The jury believed that Flame owns a chunk of minor keys. It was his idea, therefore no one else can use it. See the problem?

And that’s just the start. Check out this analysis by a proper music theorist.

If anyone has should be upset, it’s The Art of Noise who released this in 1984. Its ostinato has been sampled by others more than 120 times.

Perry’s team is appealing, of course, and they’d better win. Otherwise, this ruling will set a precedent that will cast a chill over songwriters worldwide. Everyone who’s ever written a hit is now a potential target for some copyright troll to claim that they’ve ripped off some desperate client.

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We are in a legal war on creativity. It is nothing less than aggressive copyright trolling. Let’s hope that saner heads prevail.

Alan Cross is a broadcaster with 102.1 the Edge and Q107, and a commentator for Global News.

Subscribe to Alan’s Ongoing History of New Music Podcast now on Apple Podcast or Google Play

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