Musicologist sings part of testimony in trial over Katy Perry song

LOS ANGELES -- A federal jury heard animated expert testimony, and singing, from a musicologist Friday in a case that will decide whether pop superstar Katy Perry ripped off aspects of her song "Dark Horse" from a pre-existing song released by a Christian rapper once known as FLAME.

"Do you believe that 'Dark Horse' borrows from 'Joyful Noise'?" asked the plaintiff's attorney, Lauren Cohen of St. Louis-based law firm Capes, Sokol, Goodman & Sarachan PC.

"I do," responded Todd Decker, a professor of musicology at Washington University in St. Louis.

Plaintiff Marcus Gray was based in Missouri when he first sought legal remedy, believing Perry and other artists attached to her hit song stole musical aspects of his song. Marcus Gray v. Katy Perry, 15-CV05642 (C.D. Cal., filed July 1, 2014).

U.S. District Judge Christina A. Snyder repeatedly asked the professor to speak slower so as to not outpace the court reporter. She eventually became agitated when he repeatedly used the word "striking" in a musical context due to the possibility of it being confused with the legal meaning of the word.

Decker testified that the hit song borrowed from Gray's less popular tune specifying that "music borrowing" could only be described as having occurred when multiple aspects of rhythm, harmony, melody and phrase length were proved to be identical.

"It's not enough to find one element. You must find a cluster of elements," Decker said, adding that those criteria were met in this case.

Katy Perry performs at Madison Square Garden in 2017 / New York Times News Service

Decker's testimony centered on the similar ostinatos, or "repeating figures that cycle" in each song. He identified similar eight-note sequences in both songs, each bearing a 3-3-3-3-2-2-2-5 pitch sequence he said was essentially identical. He illustrated his point by singing the numbers to the jury.

Partway through Decker's testimony, Snyder admonished him at the request of defense attorney Christine Lepera, a partner at Mitchell Silberberg & Knupp LLP, who frequently objected to Decker's use of "striking" and the apparent preemptive contradiction of the defense's expert musicologist who was not expected to testify until next week.

It was not at first apparent what Snyder meant when she told the plaintiff's attorneys, "If this continues, we will remove him from the stand." After a brief sidebar with the parties, Snyder explained to the court that some of Decker's testimony "provided some opinions that rebut what the defenses expert witness has to say."

By way of remedy, Snyder allowed Cohen to cherry-pick some central arguments written out by the opposing expert, Lawrence Ferrara, a professor of music at New York University, and allow Decker to respond.

Cohen said Ferrara, in a written opinion, argued the ostinatos "are general and lacking in distinctiveness." Cohen noted that Ferrara included "Jolly Old St. Nicholas" and "Merrily We Roll Along" as two additional songs that share a similar pattern.

Decker responded by saying the devices in those songs were "not an ostinato; it's a tune. I don't hear them as structural. I hear them as ornaments."

He previously said the ostinato was featured for 95 seconds in "Dark Horse" and for a similar amount of time in "Joyful Noise," using this as fodder for the argument that the arrangement was integral to the structure of each song.

Earlier in the day, the plaintiff testified that while he owns the rights to "Joyful Noise," he did not write the beat and he could not conclusively prove any person attached to the creation of "Dark Horse" could have heard him perform his song. His complaint alleges that in addition to cribbing from his song, the message of "Dark Horse" contradicts his and his fans' religious convictions.

"The devoutly religious message of 'Joyful Noise' has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in 'Dark Horse,'" the complaint said. "Indeed, the music video of 'Dark Horse' generated widespread accusations of blasphemy and an online petition signed by more than 60,000 demanding removal of an offensive religious image from the video."

Perry testified earlier last week. Further celebrity testimony is expected from rapper Juicy J and controversial producer Dr. Luke.