I’m Super Conflicted About the FLAME v. Katy Perry Verdict
After five years of winding its way through the legal system, a Los Angeles federal jury reached a verdict in the lawsuit filed by the Christian rap artist FLAME against Katy Perry for appropriating musical elements of his song “Joyful Noise” for her larger hit song “Dark Horse.” The jury ruled in favor of plaintiffs FLAME and his co-authors, leaving defendants Katy Perry and her collaborators liable for “unspecified damages.”
Being a connoisseur of hip-hop made for and by Christians, a hip-hop producer myself, as well as a pastor and freelance writer, I’ve been following this story since it first made news in 2014. It sits at my topical sweet-spot, the intersection of nerd culture, hip-hop culture, and evangelical culture.
(Stop over and say hello… it’s not a busy intersection.)
So now that this legal journey is complete, and the court found in favor of the artist whose music is more aligned with my values and tastes, the logical thing to do would be to rejoice, and claim this verdict as a symbol of good triumphing over evil.
But I can’t do that, at least not in such a black-and-white manner. Because everything about this case is leaving me hella conflicted.
Astute readers of mine will remember that I covered this lawsuit when it was first announced in 2014. I said it was a bad idea.
But… it worked.
I’m not so craven that I’ll do a complete 180 on something I was opposed to, once it’s clear that there’s a benefit to be had in doing so. I may be evangelical, but I’m not that evangelical.
Still, I can see this case from several different angles, and while I cannot rejoice outright, I can still think of several good things that might come out of it, even if the end result might still be less than satisfying. And even though the end of the trial is a major deal, the unspecified amount of the damages will fuel a ton of speculation. This story will continue to have legs, in no small part because our current American internet culture encourages everyone to have a take and choose a side.
That’s the part that disturbs me the most, since there’s merit on both sides of the equation.
The Case for Katy Perry
First, let’s get a few things out of the way. I’m not a lawyer or a legal scholar (although I have watched Suits for nine seasons) so take anything that sounds like legal analysis with a huge grain of salt.
Also, it’s important to acknowledge that copyright infringement cases — and really all attempts to adjudicate the relationship between a creator and his or her intellectual property — are inherently messy and complicated. And the most cynical view is that usually the party with the deeper pockets will win, because not only can they afford high quality legal representation, but more crucially, they can afford to hire expert witnesses to testify on their behalf. So in a case like this, where published reports had expert witnesses testifying for both sides, it would seem to be that legal victory would belong to whichever side could provide the most compelling witness. And since I was unable to hear any of that testimony firsthand, I can’t comment on whose expert was more credible.
But from the very first moment I heard of this lawsuit, I thought it was unnecessary and bordering on frivolous, for one main reason:
Just because two songs sound similar doesn’t mean one copied the other.
Part of the problem is a misconception of sampling and its relationship to hip-hop as a genre. Hip-hop was built around the idea of sampling, of replaying bits of existing music in order to re-purpose it for a different creative work. It’s how the instrumental break of “Good Times” by Chic became “Rapper’s Delight” by the Sugarhill Gang.
But that’s not what happened here. Lukasz “Dr. Luke” Gottwald, Henry “Cirkut” Walter and Max Martin, Perry’s producers on “Dark Horse,” did not literally record a bit of the audio from “Joyful Noise.” That much is obvious. What the plaintiffs alleged was that even though they were created by different producers, the portions of the songs that are similar are so similar that one must have been strongly influenced, and therefore be considered legally derivative, of the other.
The premise of “it sounds similar therefore it must’ve been copied” is a variation of a common legal fallacy, post hoc ergo propter hoc, which literally means “it happened after it, therefore it happened because of it.” This is why one can debunk the idea that ice cream sales cause shark attacks.
There are three other high-profile copyright infringement claims involving popular songs I could identify without Googling (Huey Lewis’ “I Want a New Drug” vs. Ray Parker Jr’s “Ghostbusters,” Robin Thicke’s “Blurred Lines” vs. Marvin Gaye’s “Got to Give It Up,” and TLC’s “No Scrubs” vs. Ed Sheeran’s “Shape of You”) and in all of them, there are elements that are unmistakably similar to each other, but each song still remains aurally distinct. They might be partially derivative, but the nature of art and music is such that every hit song is derivative in some way. It’s just the way our brains work.
I remember during college once, a friend of mine (who shall remain nameless because he works in a high profile creative role at a prominent Christian ministry) came to me with a song idea that he was playing around with. After the first two bars, I had to cut him off. “Sorry dude, that’s ‘Highly Exalted’ by Israel Houghton and Cindy Cruse-Ratcliff.” He was disappointed… but not surprised. He’d probably heard it at one point, and it bounced around in his brain until it just became a part of his subconscious.
That could’ve been what happened with the creators of “Dark Horse.” Or… it could’ve been a complete coincidence. There’s honestly no way to tell. The jury decided that in this case, there was enough similarity to justify declaring it legally derivative, but it’s likely that many of those jurors have only a passing understanding or familiarity with hip-hop as a genre.
The fact is, that kind of high-pitched synth line under an 808-style rhythm was very common during that era of hip-hop. Though the melodic contours of the related sections are very similar, those sections do not constitute the majority of the musical composition, and therefore are not so similar as to constitute a holistic similarity between the two songs. Other than those comparative portions, the songs are very different from each other.
For all of these reasons, I decried this lawsuit when it first showed up.
On the other hand…
The Case for FLAME, a.k.a. Marcus Gray
His song came out first. This much is indisputable.
And it might not have been a global hit, but “Joyful Noise”still had around five million plays on YouTube and Myspace combined. And it was available on major streaming sites like Amazon Music and Spotify at the time that Dr. Luke, Cirkut and Max Martin were collaborating on Katy Perry’s album.
So it’s reasonable to theorize that one of them could’ve heard it, and it sparked an idea for how to proceed. It might’ve happened subconsciously, or it could’ve been a blatant attempt to avoid attribution. Either scenario seems plausible to me.
Also, in my original 2014 analysis, I wrote the following:
According to the Post-Dispatch article, the suit includes the following complaint: “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.’”
Seriously? That’s laughable.
First of all, many of Flame and Lecrae’s fans are children in conservative Christian households who aren’t allowed to listen to secular radio or watch MTV, VH1, or even YouTube without adult supervision. They probably have no idea that Katy Perry song exists. And secondly, if they do manage to hear it in their friend’s mom’s minivan or at the mall or whatever, they’ll probably think that Katy Perry’s song sounds like Flame, not vice versa.
I have to admit, I was very wrong about this.
First, it was naive of me to imply that 1) most ultra conservative Christian households are listening to Christian rap, and 2) they would be such ardent fans that they would actively defend the honor of a black hip-hop artist. If there’s anything the last few years of this political cycle has taught us, it’s that there are plenty of ultra-conservatives who are so driven by fear and xenophobia that they have no interest in any semblance of logic or critical thinking. And plenty of those people are already predisposed to racist theories about black music. So the idea that some of them might buy into a conspiracy theory about a ‘so called Christian’ rap artist that’s really in league with a Satanist cabal of witches… well, in 2014, that sounded preposterous. In 2019, that could be an InfoWars headline.
Also, even if you completely ignore the filters of race and religion from the equation, the idea of attribution seems to be slowly eroding from everyday internet discourse. Unless it has to do with Marvel or DC Comics, people, by and large, do not seem to care much about attribution or sourcing when it comes to pop culture ephemera. They don’t care what movie or TV scene that Twitter GIF came from. They don’t care which TV characters popularized the catchphrases they use every day. And they really don’t care which of two songs that sound similar came out first. I mean, my goodness. There are people in this world who say that Stevie Wonder copied Coolio.
So, in retrospect, it does seem plausible that some might consider Flame’s “Joyful Noise” to be derivative just because “Dark Horse” was a bigger hit. If you’ve heard of the one song, and never heard of the other, there’s a certain seductive logic in claiming that the more popular one came first.
Also, it’s possible that if someone else would’ve recorded “Dark Horse,” it wouldn’t have spawned this kind of lawsuit. But through her music, and especially through her videos, Katy Perry has earned a reputation for cultural appropriation. She might’ve toned it down somewhat since then, but you need to look no further than her video for “Dark Horse,” with the way that it caricatures the visual style of ancient Egypt. Knowing her penchant for shamelessly mimicking the cultures of other people, it’s not a big leap to think that she might’ve authorized an instance of copyright infringement. And even if she didn’t authorize it, that kind of behavior is certainly consistent with her brand. So speaking as a person of color, it does feel like a little bit of cosmic justice that she should have to pay damages to a black man for stealing his song.
Still… cosmic justice is not the same thing as real, actual justice. Which leads me to the most important question: in this scenario and others like it, what should justice look like?
In Search of a Christian Ethic of Justice
It’s possible that, after all is said and done, the biggest takeaway from this will be that our American justice system is sometimes a blunt instrument and cannot always arrive at outcomes that are universally considered just.
I mean, first, let’s talk about damages. How much should Katy Perry and her team have to pay Marcus Gray and his team? Should they have to split the royalties in half? Is it even possible to make a quantitative breakdown of how many streams of her hit song are attributed to that particular portion of the song? And should those streams be listed separate from the YouTube views, since the visual component was entirely different than the audio? Like I said, it’s complicated.
Also, speaking as a creator of music myself, I have concerns about the unintended consequences of this verdict and others like it. If somehow I got a song placed in a movie or a video game and it became a massive hit, what’s to stop someone else from saying, “this sounds like my song that has these similar elements in this similar arrangement?” I freely admit that I find inspiration from all kinds of sources, but that doesn’t mean I copied them.
Which is I’m curious about what Flame and his team were actually looking to get out of this. I mean, I get that they’re all musicians and they have families to feed and whatnot, so if there is a legal means to secure what they consider to be rightful compensation, then I get that logic.
But is that all they wanted out of this? Were they also looking to boost their own profiles, or to raise the profile of Christian hip-hop as a subgenre? Because arguably, that part might be the most successful part of this suit. There are reporters and journalists all over America talking about a Christian rap artists that would never do so under normal conditions. Maybe they were looking to defend their reputation as ministers of the gospel from people who might associate them with witchcraft because of the connection to “Dark Horse.” As I stated earlier, that’s a plausible motivation.
But as Christians, it’s important to draw a distinction between what we can do legally, and what we should do, morally or ethically. Was suing for damages the most kingdom-minded way to represent Jesus to the broader culture? I would submit, it was probably not. But what should Marcus Gray have done instead? It’s hard to say. We don’t know what kind of communication took place prior to the filing of this suit. Maybe Flame and his legal team sought to quietly negotiate a settlement, but they were rebuffed. Maybe, citing her Christian upbringing, he did his best to make a Matthew-18-style appeal. Unless he shares those details, none of us will ever know.
In this way, I respect most the posture set by Lecrae, who was initially named as a plaintiff but withdrew himself from the lawsuit, instead relinquishing his authorial rights to his friend Emmanuel Lambert, who goes by the stage name Da TRUTH.
In an interview with MTV News, Lecrae said the following:
“I’ll say this — I have no qualms with Katy Perry. Love her and if she wants to talk at any point in time, I’m more than willing to that,” Lecrae told MTV News.
“I was in Hong Kong [when] the press release went out and it’s not my song — it’s my guy Flame’s song and I respect everyone’s intellectual properties — but that statement about the witchcraft and stuff, that’s not my statement and I don’t stand behind that statement.”
This reads less like a carefully worded statement and more like an off-the-cuff response in a busy moment, but I think Lecrae did well here. He’s basically supporting the right of his friends to pursue their legal matter, but also offering an olive branch to the artist at the center of the lawsuit. Now, the more cynical among us might conclude that this is because Lecrae knew he didn’t need the money, but I think it was for a different reason. I think Lecrae has learned that everyone needs love and respect, especially those who have so publicly renounced their faith.
That doesn’t mean that justice means always making nice and never holding anyone accountable. But it means that justice can take many forms. Considering how litigious many evangelical Christians have become, I’m hoping that artists like Lecrae can continue to show gracious alternatives. Because lawsuits are only one tool in the ethical Christian toolbox.
