Hair, nails, ice cubes listed as mitigating expenses for Katy Perry

Does the artist make sales or do the sales make the artist?

A jury's answer to that question will have a tremendous impact on music publisher Capitol Record's ability to mitigate its loss following an adverse verdict in a lawsuit brought against pop superstar Katy Perry.

Attorneys for Capitol Records Inc. and plaintiff Marcus Gray, a Missouri-based Christian rapper who sued Perry in 2014 for allegedly infringing portions of one of his songs, agreed Perry's 2013 song "Dark Horse" was a mega-hit, earning millions in sales as a single and helping boost purchases of Perry's album "Prism."

Lauren R. Cohen, an attorney at St. Louis-based Capes Sokol Goodman and Sarachan PC representing the plaintiff, placed the publisher's total earnings on the song at around $31 million.

But representatives for Capitol argued that figure fails to account for the enormous costs necessary to properly manufacture, distribute, and promote a track to ensure its success.

After deducting costs, Capitol claims it only earned around $629,000 in net profit from the track.

During examination of Steve Drellishak, group senior vice president of finance for Capitol's parent company, Universal Music Group Inc., Cohen noted among those mitigating expenses were "flashing ice cubes for cocktails" that cost more than $1,000.

Expenses connected to Perry's appearance at the MTV Video Music Awards were also deducted, including $13,600 for wardrobe, $6,270 for makeup and $821 for nails. Perry's hair stylings for appearances on awards programs and late night talk shows, like Saturday Night Live and Late Night with Jimmy Fallon, averaged around $3,500.

"I could go on, but I won't," said Cohen, noting there were 29 pages of damages-mitigating marketing expenses provided by Capitol. "Were these all necessary?"

They were, argued Drellishak, as Perry's public image is a vital aspect of her success as a superstar. Fans expect her to have the nicest hair, the best makeup and the most fashionable outfits, he said.

"That's core to who the Katy Perry brand is," Drellishak said. "You have to look perfect for those appearances."

Aaron Wais, a Mitchell Silberberg and Knupp LLP attorney representing Capitol, noted the marketing expenses highlighted by Cohen were a drop in the bucket compared to the overall costs associated with the song, including distribution and manufacturing costs, ancillary fees, royalties, and contractually obligated payments, among others.

With closing arguments marking the end of the trial's second half on Wednesday, the jury will begin Thursday with instructions before moving to deliberation. Marcus Gray v. Katy Perry, 15-CV05642 (C.D. Cal, filed July 1, 2014)

On Monday, the jury found Perry's song "contained material that was copied and distributed" from the musical composition of Gray's 2009 song "Joyful Noise." They also found "the concept and feel" of the two songs was substantially similar.