Defense musicologist in copyright trial declares no similarities between songs

LOS ANGELES -- A federal jury heard testimony Wednesday from a musicologist that contradicted prior statements from an opposing expert witness in a copyright infringement case deciding whether pop superstar Katy Perry ripped off musical elements of her song "Dark Horse" from a preexisting number released by a Christian rapper.

Lawrence Ferrara, a professor of music at New York University, told the jury, "I didn't find any musicological support for a claim that 'Dark Horse' and 'Joyful Noise' are substantially similar," during questioning from defense attorney Christine Lepera, a partner at Mitchell Silberberg & Knupp LLP.

In a broader analysis than was offered by the plaintiff's expert in prior testimony, Ferrara dissected each aspect of the songs at length and spoke to his opinion that relevant portions were too general for it to be conclusively determined they were lifted from any specific other piece of music.

Ferrara also introduced the jury to several examples of prior works that used what he called an identical ostinato, or series of repeating musical notes, in songs and soundtracks released well before the plaintiff Marcus Gray's song.

Lepera asked Ferrara what the presence of a distinct 3-2-1-5 sequence featured in both the 1996 song "Brainchild" by Nostrum and the "Choosing Life" ostinato from the 2002 movie "The Hours" told him about the ostinato featured in "Dark Horse."

Ferrara replied that the presence of the other works "confirms the simplicity of the ostinato," adding that other artists had conceived of and used the sequence prior to and independent of "Joyful Noise" in 2008. Marcus Gray v. Katy Perry, 15-CV05642 (C.D. Cal., filed July 1, 2014).

"So to the extent that there's anything in common, is that the result of coincidence or something else," Lepera inquired, Ferrara responded that any similarities, in his opinion, were purely coincidental.

In her cross examination of Ferrara, plaintiff's attorney Lauren Cohen of St. Louis-based Capes, Sokol, Goodman & Sarachan PC focused on the relationship between Ferrara and the defense firm, Mitchell Silberberg & Knupp LLP.

Under questioning, Ferrara said his services had been retained by the firm around 10 times in the past 25 years, all related to music copyright infringement cases. He said an assertion made by Cohen that he made $1 million from working with the defense firm over the years was probably not accurate, and the matter was not pursued further.

Cohen's further attempts to dismantle Ferrara's technical testimony were rebuffed as nearly every question she asked the witness was met with a puzzled look and retort that she had mis-characterized his prior testimony. Cohen's line of questioning left intact most of Ferrara's musical analysis.

Bill Rosenblatt, founder of GiantSteps Media Technology Strategies, a tech consulting firm, testified to the inner workings of the video uploading and sharing service YouTube during the period of 2008-2013, when the plaintiff's song was uploaded six times on the site.

Rosenblatt explained that during those years it was harder to find specific videos on YouTube because auto play features and algorithmic video recommendations had not reached their current sophistication.

He elaborated that the song "Joyful Noise," which the plaintiff has alleged could have been heard by one of the people involved in creating the music for "Dark Horse" on YouTube, could only have been heard if one was to type in the words "Joyful Noise" and "FLAME," the plaintiff's artistic name, into the search bar specifically due to the common nature of both the word and phrase.

Rosenblatt characterized the 3.9 million views the six uploads have received during their time on the site saying, "That number isn't a large number at all." In context, he said, there are trillions of views on the site and noted a New York Times story that alleges around half of YouTube views are the result of disingenuous bot activity.

During cross-examiantion, Michael Kahn of Capes, Sokol, Goodman & Sarachan PC asked Rosenblatt whether he had any statistics or evidence to back up his assertion that views for the song were fabricated.

Rosenblatt said he did not.