Day two of the copyright infringement trial over Katy Perry's 2013 single 'Dark Horse' included testimony from musicologist Todd Decker as well as Marcus Gray, the songwriter and performer who claims Perry and her collaborators used the underlying beat from his 2008 Christian rap song 'Joyful Noise' without permission.
Katy Perry arrives at MusiCares Person of the Year honoring Dolly Parton on Feb. 8, 2018, at the Los Angeles Convention Center.
Rather than sing the actual lyrics to either track, Decker instead sang numbers representing the pitch in each note of the two instrumental beats at issue -- both of which had been previously characterized by the musicologist as an eight-note “ostinato," a.k.a. a repeating sequence of musical figures within a song.
During cross-examination, defense attorney Christine Lepera attempted to poke holes in Decker’s claim regarding the ostinatos' alleged uniqueness. To this end, Lepera introduced a chart formulated by the defense’s own expert witness -- NYU music professor and musicologist Lawrence Ferrara -- illustrating that two much-older songs, “Jolly Old St. Nicholas” and “Merrily We Roll Along,” feature nearly-identical instrumental sequences.
The defense team further attempted to counter the perception of “Joyful Noise” as widely accessible to a mainstream audience during the years in question by noting the plaintiffs’ failure to provide any sales records for the song, set lists for concerts where it was allegedly performed or footage of those alleged performances.
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