[00:00:01] Speaker A: Want to protect your business, the time is near. You've given it heart now get it in gear it's Passage to Profit with Richard and Elizabeth Gearhart.
[00:00:12] Speaker B: I'm Richard Gerhardt, founder of Gearhart Law, a full service intellectual property law firm specializing in patents, trademarks and copyrights.
[00:00:20] Speaker C: And I'm Elizabeth Gearhart. Not an attorney, but I work at Gearhart Law doing the marketing, and I have my own startups.
[00:00:25] Speaker B: Welcome to passage to profit everyone. The road to entrepreneurship, where we talk with startups, small businesses, and discuss the intellectual property that helps them flourish. Now it's time for IP in the News. And we're going to be talking about Katy Perry and the song that was popular a while ago. It was called Dark Horse and it really made it to the top of the charts. But guess what? She's getting sued for copyright infringement. And actually the case got resolved. But it's really interesting because the people who sued her only sued her for like four notes in the song, which I happen to think even as an intellectual property lawyer is a little on the outrageous side. Right?
[00:01:03] Speaker C: They used copyright law. They got an award for 2.8 million. But then it went back to court because once you get a court resolution, it's never resolved.
[00:01:12] Speaker D: You can keep going back.
[00:01:15] Speaker B: A case that never ends.
[00:01:17] Speaker C: The court said, no, we changed our mind. So they said allowing a copyright over this material would essentially amount to allowing an improper monopoly over two note pitch sequences or even the minor scale itself.
[00:01:28] Speaker B: In the article where we learned about this, they talked about an Astonato, which I guess is this really short sequence of notes that appeared in the song. I didn't even know what an Astonato was. I had to look it up. And I listened to the Katy Perry song and I didn't hear any Astonatos because it was so fast. I guess I just completely missed it.
[00:01:48] Speaker C: Well, and since we're talking about copyright, I do have to say that we did get this article talking about this from thethings.com and it was by Astrid Longy, published September 18, 2023. But I also want to say she puts in here. Katie and Orlando Bloom, I guess, get sued a lot. So they were recently sued by a man who claims he sold them their Santa Barbara home while he was medicated.
[00:02:13] Speaker B: Well, this could be a comment for Vital IV infusion, but we'll be back to them. And the other part of this, I guess there's now people who are trying to blacklist the song Dark Horse because made reference to the serial killer Jeffrey Dahmer. And so they are down on the song for that reason.
[00:02:32] Speaker D: That's pretty gross.
[00:02:33] Speaker B: I guess the moral of the story is if you're a famous person, you just better plan to get sued for just about anything. Can you imagine her lawyers? I mean, I'm sure they're keeping very busy. Anyway, it's Richard's Roundtable and I'd like to ask our distinguished guests what they think about all of this. Sonia, welcome to the show. What's your opinion on all of this copyright infringement? Sounds like people are very sue crazy.
[00:02:58] Speaker E: I mean, I used to play an instrument years ago, and I don't know what an astonato is either.
[00:03:06] Speaker B: But four.
[00:03:07] Speaker E: Notes seems a bit extreme. I mean, they don't have ownership on all the notes on the planet, and I've got to imagine four notes have been put together somewhere sometime. So that sounds a little heavy handed.
[00:03:19] Speaker B: Yeah. And to $2.8 million for four notes? I mean, that's, like, a lot of money for notes. That's like almost a million dollars per note, right? Isn't there supposed to be a percentage that is copied out of the entire.
[00:03:33] Speaker C: Song in order for it to be infringement?
[00:03:35] Speaker B: Well, that's a really great point. I didn't actually read the case itself, but 2.8 on a very popular song could be the result of a royalty, which is what you're saying. She may have had a royalty of 5% awarded against her, and that could add up to $2.8 million depending on how well the song did financially. So it's possible that that's how they got to the number. How about the percentage of content per the entire song? Are there rules with that?
[00:04:01] Speaker D: Because I thought there were.
[00:04:02] Speaker B: It's interesting. Damages and copyright cases, they can really be based on a lot of different factors, and usually each side will have an expert that testifies about how much the damages should be, and so you could calculate it on any way that makes sense. Lots of times, copyright infringement comes down to more than four notes, so maybe a good expert argument could be made on the other side that is such a small piece. It's really not worth the full 5%.
[00:04:29] Speaker C: I think the question is, though, how much can you copy without getting in trouble, right?
[00:04:34] Speaker D: Is that what you're trying to someone.
[00:04:36] Speaker B: Had once said it was like seven to 10%. Anything over that and you're in trouble. I don't know. It was random numbers.
[00:04:44] Speaker F: You're the expert.
[00:04:45] Speaker B: I'm curious, but sometimes people say that, and that may not be a bad way to think about it. The test for copyright infringement is substantial similarity, and that's really a very subjective standard. You can put that in front of a bunch of different people, and they would all come to a different conclusion. But that's the legal test. Are the music lyrics? Are the songs are the film pieces are they substantially similar and people look at it and they say, yes, it is, or no, it's not, and it really just kind of comes down to that. Anyway, Phil, what do you have to.
[00:05:15] Speaker G: Say about, you know, I come from a very interesting generation of gen z, so that right there kind of speaks for itself. The biggest thing that I kind of see when it comes to these things is, like, anybody getting canceled nowadays. This huge cancel culture that you deal with and seeing really just anything from 90s hip hop to movies that I grew up watching. It's like, oh, everybody's kind of against this and that, and they just want to cancel this. It's honestly crazy. And it can get a little out of hand sometimes, for sure.
[00:05:45] Speaker B: That's really mean. You know, there's all sorts of sanctions that society has, right? So there's the lawsuit part, but then there's also the social part, right, which can play a big role. And so, as you know, Dark Horse people are objecting because of Jeffrey Dahmer, and that can also have consequences. So good point. What about our team here from Vital IV infusion? So, welcome to the show. What do you think about all of this?
[00:06:10] Speaker F: I think they're taking it to the next level. I think that with social media, Twitter things is almost like a small fire that just explodes with certain topics. So some of the outrage is to continue the clout of the topic. Not necessarily to just be sue happy is just to stay relevant with it.
[00:06:32] Speaker B: So the people who sued Katy Perry, they were a band called Joyful Noise, right? And so who's to say that they didn't do this just so they could get some publicity, right?
[00:06:41] Speaker F: I mean, it's kind of like they're.
[00:06:43] Speaker D: Like, let me hear the original TJ.
[00:06:46] Speaker C: What do you think?
[00:06:47] Speaker H: I think it takes away from the artist. I think it's just like, if I'm a new up and coming artist, I would be freaked out, out of my mind if I'm going to be sued for everything I put out. Or I think artists in general should just have this freedom of exploring and doing things without some of these backlashes and things to that extent, yeah.
[00:07:03] Speaker B: I mean, do you really think that Katy Perry listened to this song from Joyful Noise and said, I'm going to copy these four notes and put it in my new could? You could see it if somebody deliberately copies, but that doesn't seem like it's likely here. Kenya I don't know.
[00:07:20] Speaker D: I feel very differently than everybody else in the room. I think working in this business. I think the whole AI situation that's happening now where people can borrow people's voices, and I do think there are certain circumstances where people do listen to certain songs and they're inspired and they're like, oh, just borrow those few notes and no one will pay attention. What I think is impressive about her legal team, or whoever's legal team this was that sued her is they were able to prove their case. I think it's great that she, or rather the people who were suing her, were able to protect their intellectual property and their creativity. I also think I feel the same way about my voice. Like, if I hear my voice somewhere, according to AI rules, now I can't even protect my voice. I hear songs all the time by Drake that are remade using his likeness in his voice. It's like there's no protection in that space when it comes to the use of your voice, but there's protection when it comes to musical notes. So it's kind of a little bit of a disparity in the world of creativity. And I'm just wondering, I don't know how that's going to be navigated in the future and how you as a media person or something like that can be protected in terms of people using your voice or likeness.
[00:08:27] Speaker B: That's a really good point, because back in the 18 hundreds when people wrote symphonies or they did folk music, there wasn't as much dissemination of the music as there is now. Now, on the Internet, anybody can create anything really, really fast. And it gets out there really, really fast. And it's really hard to keep up with because even if you're well meaning, it's hard to keep it straight, what you heard versus what you're doing now, I would imagine for a lot of musicians, that's kind of a challenge. And there's just so many sources out there that didn't used to exist. So how do you keep up with all that? And now you've got AI on top of it.
[00:09:04] Speaker D: Makes it even trickier. I'll say one more thing, too, about that song. So that song was also remade for fitness class use. So I teach cycling, and that has been in some of the playlists that I've seen. So not only did Katy Perry make money off of the original use of it or creativity of it, but she also made use of it in other places with these other companies that are doing remakes of it. So, I don't know, I'm for the people if they were able to prove their case and she did borrow it. I also have some discernment in my spirit about that song. So it's interesting to hear that it was about Jeffrey Dahmer, because when I listened to him, like, sounds pretty dark. So now that I hear that it's about him, I'm like, that makes perfect sense.
[00:09:40] Speaker B: Definitely is dark. I mean, it's called dark horse. Yeah, right.
Anyway, I guess the moral of the story is if you become rich and famous, you can be sued multiple times for just about anything. And I guess that just kind of goes with the territory, right? Before we go, I'd like to thank the Passage to profit team. Noah Fleischmann, our producer, alicia Morrissey, our program director. Our podcast can be found tomorrow. Anywhere you find your podcast, just look for The Passage to Profit show. And don't forget to like us on Facebook and Instagram. And remember, while the information on this program is believed to be correct, never take a legal step without checking with your legal professional. First Gearhart Law is here for your patent, trademark and copyright needs. You can find
[email protected] and contact us for a free consultation. Take care, everybody. Thanks for listening. And we'll be back next week.
