Jury to decide damages owed by Katy Perry for 'Dark Horse'

LOS ANGELES (AP) — A jury's verdict that Katy Perry's 2013 hit "Dark Horse" improperly copied a 2009 Christian rap song represents a rare takedown of a pop superstar and her elite producer by a relatively unknown artist, and sets up a battle over damages that will begin Tuesday.

Monday's unanimous verdict by a nine-member federal jury in a Los Angeles courtroom came five years after Marcus Gray and two co-authors, first sued in 2014 alleging "Dark Horse" stole from "Joyful Noise," a song Gray released under the stage name Flame.

The penalty phase is scheduled begin Tuesday with opening arguments, and will ultimately determine how much Perry and other defendants owe for copyright infringement. Testimony will give jurors a peek into the finances behind "Dark Horse," a hit single that earned Perry a Grammy nomination and was the second song in her elaborate 2015 Super Bowl halftime performance.

Questions from the jury during two days of deliberations had suggested that they might find only some of the defendants liable for copyright infringement. The case focused on the notes and beats of the song, not its lyrics or recording, and the questions suggested that Perry might be off the hook.

But in a decision that left many in the courtroom surprised, jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote only the song's words, and Juicy J, who only wrote the rap he provided for the song. Perry was not present when the verdict was read.

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Katy Perry at the 2019 Met Gala
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Katy Perry at the 2019 Met Gala
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Charles Sykes/Invision/AP)
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Charles Sykes/Invision/AP)
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Charles Sykes/Invision/AP)
NEW YORK, NEW YORK - MAY 06: Katy Perry and Celine Dion attend the 2019 Met Gala Boom Boom Afterparty at The Standard hotel on May 06, 2019 in New York City. (Photo by Daniel Zuchnik/GC Images)
NEW YORK, NEW YORK - MAY 06: Katy Perry attends the 2019 Met Gala Boom Boom Afterparty at The Standard hotel on May 06, 2019 in New York City. (Photo by Daniel Zuchnik/GC Images)
NEW YORK, NEW YORK - MAY 06: Katy Perry attends the 2019 Met Gala Boom Boom Afterparty at The Standard hotel on May 06, 2019 in New York City. (Photo by Daniel Zuchnik/GC Images)
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Charles Sykes/Invision/AP)
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Charles Sykes/Invision/AP)
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Evan Agostini/Invision/AP)
Katy Perry attends The Metropolitan Museum of Art's Costume Institute benefit gala celebrating the opening of the "Camp: Notes on Fashion" exhibition on Monday, May 6, 2019, in New York. (Photo by Evan Agostini/Invision/AP)
NEW YORK, NEW YORK - MAY 06: Katy Perry attends The 2019 Met Gala Celebrating Camp: Notes on Fashion at Metropolitan Museum of Art on May 06, 2019 in New York City. (Photo by John Shearer/Getty Images for THR)
NEW YORK, NEW YORK - MAY 06: Katy Perry attends The 2019 Met Gala Celebrating Camp: Notes on Fashion at Metropolitan Museum of Art on May 06, 2019 in New York City. (Photo by John Shearer/Getty Images for THR)
NEW YORK, NEW YORK - MAY 06: Katy Perry attends The 2019 Met Gala Celebrating Camp: Notes on Fashion at Metropolitan Museum of Art on May 06, 2019 in New York City. (Photo by Mike Coppola/MG19/Getty Images for The Met Museum/Vogue )
NEW YORK, NEW YORK - MAY 06: Katy Perry and Diane von Furstenberg attend The 2019 Met Gala Celebrating Camp: Notes on Fashion at Metropolitan Museum of Art on May 06, 2019 in New York City. (Photo by Dia Dipasupil/FilmMagic)
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Other defendants found liable were Capitol Records as well as Perry's producers: Dr. Luke, Max Martin and Cirkut, who came up with the song's beat.

Gray's attorneys argued that the beat and instrumental line featured through nearly half of "Dark Horse" are substantially similar to those of "Joyful Noise." Gray wrote the song with his co-plaintiffs Emanuel Lambert and Chike Ojukwu.

"Dark Horse," a hybrid of pop, trap and hip-hop sounds that was the third single of Perry's 2013 album "Prism," spent four weeks atop the Billboard Hot 100 in early 2014.

Her attorneys argued that the song sections in question represent the kind of simple musical elements that if found to be subject to copyright would hurt music and all songwriters.

"They're trying to own basic building blocks of music, the alphabet of music that should be available to everyone," Perry's lawyer Christine Lepera said during closing arguments Thursday.

The defendants' musical expert testified that the musical patterns in dispute were as simple as "Mary Had a Little Lamb."

But the jury of six women and three men disagreed, finding that the bumping beat and riff at the center of "Joyful Noise" were original enough to be copyrighted.

Perry and the song's co-authors testified during the seven-day trial that none of them had heard the song or heard of Gray before the lawsuit, nor did they listen to Christian music.

Gray's attorneys had only to demonstrate, however, that "Joyful Noise" had wide dissemination and could have been heard by Perry and her co-authors. They provided as evidence that it had millions of plays on YouTube and Spotify, and that the album it's included on was nominated for a Grammy.

"They're trying to shove Mr. Gray into some gospel music alleyway that no one ever visits," said plaintiffs' attorney Michael A. Kahn during closing arguments, when he also pointed out that Perry had begun her career as a Christian artist.

Jurors agreed, finding that the song was distributed widely enough that the "Dark Horse" writers may well have heard it.

Kahn and Gray declined comment but smiled as they left the courtroom after the verdict.

Lepera and other defense attorneys also declined comment outside court. Perry's publicist did not immediately return an email message seeking comment Monday evening.

Perry, a 34-year-old pop superstar and "American Idol" judge, brought laughs to the proceedings when she testified during its second day when her lawyers were having technical troubles getting "Dark Horse" to play in the courtroom.

"I could perform it live," Perry said.

No performance was necessary after the audio issues were fixed. Jurors heard both songs played back-to-back in their entirety at the end of closing arguments last week.

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Katy Perry through the years
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Katy Perry through the years
FLORENCE, ITALY - JUNE 18: Katy Perry poses backstage prior to the Moschino show during the 88 Pitti Uomo on June 18, 2015 in Florence, Italy. (Photo by Vittorio Zunino Celotto/Getty Images)
INDIO, CA - APRIL 12: Mia Moretti (2ndL) and Katy Perry (C) with guests in the VIP arena during the 2015 Coachella Valley Music and Arts Festival - Weekend 1 at The Empire Polo Club on April 12, 2015 in Indio, California. (Photo by Rachel Murray/Getty Images for Coachella)
LOS ANGELES, CA - MARCH 26: Singer Katy Perry takes a selfie with fans at the screening of EPIX's 'Katy Perry: The Prismatic World Tour' at The Theatre at Ace Hotel Downtown LA on March 26, 2015 in Los Angeles, California. (Photo by Jason Merritt/Getty Images)
US singer Katy Perry performs at the Ziggo Dome in Amsterdam, on March 09, 2015 as part of her Prismatic World Tour. AFP PHOTO/ANP/FERDY DAMMAN - netherlands out - (Photo credit should read Ferdy Damman/AFP/Getty Images)
PARIS, FRANCE - MARCH 08: (L-R) Kanye West, Kim Kardashian and Katy Perry attend the Givenchy show as part of the Paris Fashion Week Womenswear Fall/Winter 2015/2016 on March 8, 2015 in Paris, France. (Photo by Pascal Le Segretain/Getty Images)
LOS ANGELES, CA - FEBRUARY 08: Singer Katy Perry attends The 57th Annual GRAMMY Awards at the STAPLES Center on February 8, 2015 in Los Angeles, California. (Photo by Jason Merritt/Getty Images)
GLENDALE, AZ - FEBRUARY 01: Singer Katy Perry performs during the Pepsi Super Bowl XLIX Halftime Show at University of Phoenix Stadium on February 1, 2015 in Glendale, Arizona. (Photo by Tom Pennington/Getty Images)
GLENDALE, AZ - FEBRUARY 01: Recording artist Katy Perry performs onstage during the Pepsi Super Bowl XLIX Halftime Show at University of Phoenix Stadium on February 1, 2015 in Glendale, Arizona. (Photo by Christopher Polk/Getty Images)
PHOENIX, AZ - JANUARY 29: Singer Katy Perry speaks during the Pepsi Super Bowl XLIV Halftime Show Press Conference at the Phoenix Convention Center on January 29, 2015 in Phoenix, Arizona. (Photo by Mike Lawrie/Getty Images)
SYDNEY, AUSTRALIA - NOVEMBER 26: Katy Perry takes a selfie with fans at the 28th Annual ARIA Awards 2014 at the Star on November 26, 2014 in Sydney, Australia. (Photo by Ryan Pierse/Getty Images)
WASHINGTON, DC - JULY 31: (AFP OUT) Singer Katy Perry performs during a concert commemorating the Special Olympics with U.S. President Barack Obama, not pictured, in the State Dining Room of the White House on July 31, 2014 in Washington, D.C. Founded in 1968 by Eunice Kennedy Shriver, the Special Olympics movement has grown to more than 4.4 million athletes in 170 countries. (Photo by Andrew Harrer-Pool/Getty Images)
Pop star Katy Perry arrives on June 12, 2014 in Los Angeles, California, for an announcement where she is teaming up Staples to 'Make Roar Happen', celebrating and supporting teachers for a philanthropic effort during the back-to-school season. Besides donating $1 million to DonorsChoose.org, Staples will sponsor the North American leg of Katy Perrys Prismatic World Tour, which starts in Raleigh, North Carolina on June 22. AFP PHOTO/Frederic J. BROWN (Photo credit should read FREDERIC J. BROWN/AFP/Getty Images)
LAKE BUENA VISTA, FL - JULY 04: In this handout photo provided by Disney Parks, singer Katy Perry poses with Minnie Mouse and Mickey Mouse at Disney's Hollywood Studios at Walt Disney World Resort on July 4, 2014 in Lake Buena Vista, Florida. Katy Perry, who sang the hit song 'Firework,' visited Walt Disney World Resort on U.S. Independence Day during a break in her global 'Prismatic' concert tour. (Photo by Chloe Rice/Disney Parks via Getty Images)
LONDON, ENGLAND - FEBRUARY 18: Katy Perry attends the Elle Style Awards 2014 at one Embankment on February 18, 2014 in London, England. (Photo by Anthony Harvey/Getty Images)
LOS ANGELES, CA - JANUARY 27: Recording artist Katy Perry performs onstage during 'The Night That Changed America: A GRAMMY Salute To The Beatles' at the Los Angeles Convention Center on January 27, 2014 in Los Angeles, California. (Photo by Kevin Winter/Getty Images for NARAS)
NEW YORK - FEBRUARY 04: Singer Katy Perry attends the Betsey Johnson 2008 fashion show during Mercedes-Benz Fashion Week Fall 2008 at The Tent at Bryant Park on February 4, 2008 in New York City. (Photo by Stephen Lovekin/Getty Images for IMG)
CULVER CITY, CA - MAY 30: Singer Katy Perry performs onstage during the taping of Spike TV's 2nd Annual 'Guys Choice' Awards held at Sony Studios on May 30, 2008 in Culver City, California. The show airs on June 22, 2008 at 10PM ET/PT on Spike TV. (Photo by Alberto E. Rodriguez/Getty Images)
LOS ANGELES, CA - JUNE 17: Musician Katy Perry attends the Katy Perry record release party for 'One of the Boys' at Capitol Records on June 17, 2008 in Los Angeles, California. (Photo by Jesse Grant/Getty Images for EMI Music)
NEW YORK - SEPTEMBER 05: Katy Perry arrives in Bryant Park during the Mercedes-Benz Fashion Week Spring 2008 on September 5, 2007 in New York City. (Photo by Katy Winn/Getty Images for IMG)
LOS ANGELES - MAY 5: Singer Katy Perry arrives at the H.D. Buttercup Grand Opening Celebrity Treasure Hunt at the H.D. Buttercup at the Helms Bakery Building May 5, 2005 in Los Angeles, California. (Photo by Phil McCarten/Getty Images)
WEST HOLLYWOOD, CA - FEBRUARY 27: Singer Katy Perry arrives at The Abbey / Esquire Magazine 'The Envelope Please' Oscar Viewing Party on February 27, 2005 at The Abbey in West Hollywood, California. (Photo by Amanda Edwards/Getty Images)
BEVERLY HILLS, CA - FEBRUARY 23: Singer Katy Perry during the Jimmy Choo annual Oscar Collection Preview and Tea at the Peninsula Hotel on February 23, 2004 in Beverly Hills, California. (Photo by Amanda Edwards/Getty Images)
SAO PAULO, BRAZIL - SEPTEMBER 24: Singer Katy Perry performs live at Arena Allianz Parque on September 25, 2015 in Sao Paulo, Brazil. (Photo by Daniel Vorley/Getty Images)
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Follow AP Entertainment Writer Andrew Dalton on Twitter: https://twitter.com/andyjamesdalton .

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