Robin Thicke, Katy Perry, Ed Sheeran. All three artists have been hit by prominent copyright lawsuits over their songs, which allegedly plagiarized from songs by various artists. But how valid is it to copyright musical sequences? 

Katy Perry’s song “Dark Horse” was hit with a $2.78 million dollar lawsuit over the apparent plagiarism of a six-note sequence from Christian rapper Flame’s little known song “Joyful Noise,” which, while initially sounding somewhat similar, is from a musical theory standpoint simply not the same. The two songs don’t share the same melody, nor the same chord progression, or baseline, or drum groove. The element in similar is a synth ostinato – a repeated riff that supports the melody.

However, in the lawsuit, Flame’s lawyers skirted this issue by not commenting on any of the musical elements specifically, simply commenting that they sounded similar, and then also strangely complaining about the “witchcraft and paganism” in the Dark Horse music video.

These lawsuits aren’t about the music itself. In fact, many of the artists who claim to have been plagiarized aren’t even the ones who initially realize that they were ‘stolen from’ – it’s lawyers who seek out similar sounding songs, and help the artists bring lawsuits because they’re seeking profits. That’s why these lawsuits all demand a trial by jury. If you can confuse jurors who don’t understand the first thing about music theory and get them on your side with fancy music theory jargon, profits are in store, to pay for the “damages” that the “copyright infringement” cost you.

The precedent that the Katy Perry case set is that the very idea of a quarter note ostinato, descending from the 3rd degree in a minor scale originated in 2008 with Christian rapper Flame.

“Until judges recognize and curb this perfidious – or perhaps merely witless – conflating of sound and music by ‘expert’ musicologists playing to the sympathies of bewildered jurors, we can expect a continuing blitz of meritless claims like this one, and the deleterious and ambiguous restraints they impose on popular musicians and the American music industry,” said musician and copyright lawyer Charles Cronin on George Washington University’s Music Copyright Infringement blog. And I tend to agree – if the Katy Perry lawsuit, and others like it, are to set the precedent for the modern music copyright case, the American music industry will become increasingly limited and limited by copyright on increasingly simpler elements, which is a dystopian society I don’t want to live in. There’s only a certain number of notes that can be combined in musical compositions, and for someone to be able to effectively own such a specific piece of the shared musical language is dangerous and irresponsible.