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Katy Perry Defendants Denied Summary Judgment in Copyright Infringement Action Over “Dark Horse”
Former Percussionist for The Roots Can Proceed with Lanham Act and Publicity Rights Claims Against the Band

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Katy Perry Defendants Denied Summary Judgment in Copyright Infringement Action Over “Dark Horse”

The U.S. District Court for the Central District of California denied summary judgment to Katy Perry and her co-songwriters, record labels and music publishers in a copyright infringement action over Perry’s 2013 recording release “Dark Horse.” Gray v. Perry, 2:15-cv-05642. The plaintiffs, including Christian hip-hop artist Flame, co-composed the song “Joyful Noise,” publicly released on a 2008 Flame album. But the Perry defendants argued the plaintiffs failed to show that the defendants had access to “Joyful Noise.” District Judge Christina A. Snyder noted the defendants argued the “Joyful Noise” plaintiffs had “a high burden to prove ‘widespread dissemination’ and that the plaintiffs work must be so popular that it can be reasonably assumed that defendants could not have avoided hearing it.” District Judge Snyder added: “Although defendants [also] insist that a showing of commercial exploitation is necessary to prove access, such reasoning would make it permissible to infringe on a copyrighted work simply because it was never for sale. So while plaintiffs have not shown evidence of commercial success, they have demonstrated a triable issue of fact as to access [thereby defeating the defendants’ summary judgment motion] because ‘Joyful Noise’ achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and Myspace. Defendants’ concerns about the meaningfulness of the YouTube and Myspace view counts, the distinctiveness of the Christian music market, and the lack of commercial activity are questions of fact to be resolved by the jury.” The Perry defendants also challenged the sufficiency of the expert’s report by the plaintiffs’ musicologist Todd Decker. But finding that Decker’s report raised a genuine issue of material fact, District Judge Snyder observed: “Without transcribing the works into musical notation, Decker identified concrete elements of the [descending] ostinatos [that the expert said were in both the songs at issue] including phrase length, rhythm, pitch content, and timbre. Decker also explained his reasons for depicting the pitch content of the two songs with scale degrees instead of musical notations ….” The district court determined this was enough for the case to continue, as “the Court cannot determine as a matter of law that the overlapping similarities identified by Decker are not protectable musical expressions.”

Former Percussionist for The Roots Can Proceed with Lanham Act and Publicity Rights Claims Against the Band

The U.S. District Court for the Southern District of New York is allowing Frank “Knuckles” Walker, the long-time former percussionist for The Roots, to proceed with his causes of action against the band alleging New York right of publicity violations and false endorsement under the Lanham Act. Walker v. Thompson, 17 Civ. 6240. Knuckles claims that the night The Roots was set to start as the house band on Late Night with Jimmy Fallon in March 2009, he was given an agreement that he signed with the band’s company Truer Notes to appear on the show for the next 12 months. In the agreement, Knuckles assigned Truer Notes “the worldwide right in perpetuity to use and publish and to permit others to use and publish [Plaintiff’s] name, likeness, voice and other biographical material in connection with [Plaintiff’s] services and performances hereunder and the results and proceeds thereof, including without limitation [Plaintiff’s] name, photograph, image and likeness in connection with any audio or video recordings.” The agreement also gave Truer Notes “the right to terminate this contract (and remove [Plaintiff] as a member of the Band), with or without proper cause ….” Knuckles continued to record with the band and appear as a member of The Roots on The Tonight Show with Jimmy Fallon until the group fired him in March 2017. In denying the defendants’ motion to dismiss Knuckles’ false endorsement and publicity right claims, District Judge Analisa Torres noted: “Plaintiff alleges that he signed the Agreement ‘under duress’ because it was ‘handed to him immediately before the first show in March 2009’ and ‘he did not have the opportunity to retain an attorney or professional to review the Agreement.’ … And the parties dispute whether the Agreement expired when Late Night ended in 2013 or whether it continued to govern the parties’ relationship while The Roots and Plaintiff performed on the Tonight Show.” District Judge Torres concluded: “Even if the Agreement is valid, by its own terms, as Plaintiff notes, the Agreement grants Defendants the right to use Plaintiff’s likeness ‘in perpetuity’ only if the use is ‘in connection with [Plaintiff’s] services and performances hereunder.’ Because Defendants are using Plaintiff’s likeness [e.g., according to the court, online by Roots drummer Questlove] to promote performances and concerts in which he did not perform, Plaintiff argues that the use of his likeness is not ‘in connection’ with the work performed ‘hereunder.’”

***** Stan Soocher is Editor-in-Chief of Entertainment Law & Finance as well as an entertainment attorney and a book author. He is Professor of Music & Entertainment Studies at the University of Colorado’s Denver Campus. For more information: www.stansoocher.com.

The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.

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