Jury says Katy Perry owes Christian rapper $2.8M for infringement

A federal jury has ordered Katy Perry and her fellow defendants to pay $2.78 million for infringing a 16-second snippet from a Christian rapper's song.

Having earlier this week found the defendants liable for infringement in connection with Perry's 2013 mega-hit "Dark Horse," the jury found Perry personally earned $2.4 million from the success of the track. They ordered her to pay 22.5% of that, or about $550,000, to Gray.

That figure was likely an attempt by the jury to meet the parties' demands in the middle as it's half of the 45% that Michael A. Kahn, senior counsel of Capes Sokol Goodman and Sarachan PC, reasoned Gray should receive.

In closing arguments Thursday, Kahn said his client deserved "a fair portion, not all" of the profits earned from the song. He previously placed the profit figure at around $41 million with defendant Capitol Records Inc. earning around $31 million while Perry and other defendants earned the remaining $10 million.

No one disputed the collection of notes the jury earlier this week found were lifted from Gray's Christian rap song "Joyful Noise" and used in "Dark Horse," Kahn said, can be heard for 95 seconds throughout the 3-minute and 30-second long song. That's about 45% of the song -- a percentage of the profits Kahn reasoned Gray deserves for the infringement.

"That's at a bare minimum," Kahn said.

Kahn said the defense's attempts to mitigate and apportion their profits while overstating their expenses shouldn't be accepted by the jury as justification for reducing Gray's award. He took issue with the defense's calculation of profits from album sales because they divided profits by the total number of tracks on the album despite that "Dark Horse" was much more financially successful than any other song on the CD.

Aaron M. Wais, co-chair of Mitchell Silverberg & Knupp LLP's entertainment and intellectual property litigation group, said waving off the defense's apportionment does a discredit to the many people who went into making the song a success. Marcus Gray v. Katy Perry, 15-CV05642 (C.D. Cal, filed July 24, 2015).

Beyond Perry and rapper Juicy J, there were six songwriters credited with helping create the track. People also helped manufacture, distribute, and promote the song and to film a music video to accompany its debut, Wais noted.

Deferring to expert witness testimony offered by musicologist Lawrence Ferrara, Wais said the hook is considered to be the most important part of your average song, followed by the vocal performances, backing music, production and arrangement. The 16-second stretch of music in dispute wouldn't rank highly when determining what made the song a hit, Wais argued.

But the reason most people bought a Katy Perry album, he said, "is because it features Katy Perry."

"Why do people go to movies? They like the actors. They see the marketing," Wais said.

They don't go to see a single scene, he argued, or hear a single piece of dialogue.

While the defense reasoned the 16 seconds of music in dispute didn't contribute much to the success of the song either way, Wais said the jury wasn't obligated by its earlier finding of infringement to offer Gray financial compensation. They could reject a causal nexus between the financial success of Perry's song and the allegedly infringed music. Proving that nexus was a burden they said the plaintiffs failed to satisfy as required.

Ultimately, the jury disagreed, finding a nexus between the music and the songs' gross earnings and ordering the defendants to pay varying amounts based on the amount they were found to have earned. The jury found music producer Luke Gottwald, professionally known as Dr. Luke, had taken home around $277,000 from the track. Gottwald was ordered to pay $60,000, or 22.5%. Capitol Records Inc., who the jury found to have taken home the lion's share of the earnings at $5.3 million, was ordered to pay $1.28 million.