Plaintiff’s YouTube views may count in case against singer

The song "Joyful Noise" has millions of views on YouTube, and it's not wholly unreasonable to question whether pop star Katy Perry might be one of them, U.S. District Judge Christina A. Snyder seemed inclined to believe during a hearing Monday.

Musician Marcus Gray sued Perry in 2014, claiming her song "Dark Horse" heavily lifted instrumentals from a song his Christian hip-hop band produced years earlier. Claiming Perry's song irreparably tarnished his reputation with his Christian audience by associating him "with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in 'Dark Horse,'" Gray sued for a permanent injunction and damages.

Perry's attorneys asked for the case to be dismissed, arguing in a motion for summary judgment that Perry and the other creators behind "Dark Horse" not only weren't aware of Gray, it's highly unlikely they'd listened to music in the Christian hip-hop genre at all. He also noted that Gray et al. v. Perry et al., 15-cv-05642 (C.D. Cal., filed July 1, 2014).

Daniel R. Blakey, an attorney with Capes Sokol Goodman and Sarachan PC representing Gray, argued Monday it wasn't unreasonable to think Perry or others might have heard "Joyful Noise," given it was prominent enough to be nominated for a Christian music award in 2009. But he pointed chiefly to the millions of YouTube views of the song's video as evidence that Perry and others could have conceivably heard the song. The song has around 4 million views currently, though it had just under 3 million at the time the complaint was filed, according to court documents.

In the grand scheme, however, even 4 million views is a "speck," said Christine Lepera, an attorney at Mitchell Silberberg & Knupp LLP and counsel to Perry.

While the plaintiffs cited testimony from Google LLC Engineering Director Joel Truher as evidence in support of their case, Lepera noted that even he acknowledged problems with counting on Google's calculations. In a declaration, Truher said there's no way to tell whether a video has been watched once by a million people or a million times by a single person. Nor does a "view" mean the person necessarily even watched and listened to the video, beyond opening the page and allowing the video to play.

Truher also said Google can't "guarantee" the results are accurate, "as the view count may have been improperly inflated by means that were not detected by Google."

If access could be so easily proven, Lepera said, it could "create a flood of lawsuits" filed on a similar basis after would-be plaintiffs find ways to dishonestly bolster page views.

Snyder tentatively ruled against Perry's motion, and while her mind wasn't entirely made up on the matter, the judge said she wasn't likely to shift from that position after hearing argument from counsel Monday. Snyder warned parties that, should the matter reach the point of jury trial, she might end up deciding the case herself under Federal Rules of Civil Procedure Rule 50. The rule allows courts to grant motions for judgment as a matter of law in cases where a reasonable jury would not have a legally sufficient evidentiary basis to make an informed decision.

Having said that, Snyder told parties they may want to pursue a resolution outside the courtroom.

Lincoln Bandlow, a partner at Fox Rothschild LLP not involved in the case, said he felt using YouTube views to show the potential for access is "a stretch." But then, he noted, the "subconscious exposure theory" of copyright infringement law under which Gray makes his argument is "a bit of a stretch in the first place."

The theory, first established in a 1976 infringement case against Beatles legend George Harrison, suggests parties can unknowingly "absorb" protectable elements in a work, particularly if the property allegedly infringed has been widely disseminated. If a couple million YouTube views is enough to consider the standards for access met, Bandlow said, the standard for access will "likely require a lot less evidence to establish."

"It doesn't introduce a new concept in copyright law; it just lessens the burden," Bandlow said. "The problem is that the more it becomes 'access can be met if a work is generally out there' the more we get close to writing the access requirement out of the law."