Warner claims ad income on Dark Horse commentary video over musical segment it said wasn’t protected by copyright

Katy Perry

A musician and YouTuber who posted a video explaining why last year’s song-theft ruling against Katy Perry was bullshit last week found himself fighting a copyright claim from, erm, Katy Perry’s publisher Warner/Chappell. Why? Because his video included the short musical segment at the heart of that legal dispute. Which is to say the short musical segment that Perry and her publisher claimed in court couldn’t be protected by copyright. And which the court decided actually belonged to the Christian rapper who sued her. Good times.

Adam Neely posted his video commentary on the ‘Dark Horse’ song-theft case last August, shortly after an American jury ruled that the Perry track ripped off an earlier work from the rapper Flame called ‘Joyful Noise’. The same jury subsequently ruled that Perry and her team should to pay $2.7 million in damages to Flame and his collaborators. Perry and her publishers are already appealing those rulings.

With the title ‘Why the Katy Perry/Flame lawsuit makes no sense’, Neely’s video puts the spotlight on the short musical segment that both ‘Dark Horse’ and ‘Joyful Noise’ utilise. In among his informative commentary he played said segment, also illustrating how slight variations of it appear on other works that predate both Perry and Flame’s tracks.

The video is wholly supportive of Perry’s side in the legal battle. It explains why many in the songwriter community is concerned about the copyright law precedents being set in cases like this. And Neely is particularly critical of the musicologist upon whose evidence Flame relied. The posting went viral last summer, resulting in Neely being approached by other media for commentary on the case, and even being invited to participate in an amicus brief that would be filed with the court in support of Perry’s appeal.

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In a new video posted last week, Neely revealed that Warner/Chappell recently sought to claim all the ad income generated by his ‘Dark Horse’ commentary via YouTube’s Content ID platform. The claim, which was seemingly manually made and not instigated by YouTube’s automated systems, reckoned that the publisher should get that money because the video includes the melody from Katy Perry’s ‘Dark Horse’. Except last August’s video only includes the disputed musical segment, in various forms, played on a keyboard.

Given the context of the video, Neely’s use of that musical segment would almost certainly constitute fair use under American copyright law. It would probably also be covered by a critical analysis copyright exception in other countries where copyright law doesn’t have quite as wide-ranging and ambiguous a get out as fair use. But, as Neely notes, Warner/Chappell’s copyright claim in this even odder in this case.

“Katy Perry lost that suit”, he said in last week’s video, “so where does that leave the copyright for Warner/Chappell? ‘Dark Horse’ was found to be infringing upon ‘Joyful Noise’, so why is Warner/Chappell still able to claim my video and take the advertising revenue?”.

More than that, he went on, Warner/Chappell’s Content ID claim said his video uses the “melody” from ‘Dark Horse’. But it only uses the disputed musical segment in the case. In court, Perry et al were keen to stress that wasn’t the melody of ‘Dark Horse’, but rather a simple segment in the background. The publisher then identified a specific moment in Neely’s video where the alleged copyright violation is found. But that moment is actually the bit where he plays the disputed musical segment as it appears in ‘Joyful Noise’.

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So, a pretty flawed Content ID claim on multiple levels. We should note that, shortly after Neely posted his video about it all, Warner/Chappell dropped its claim.

Maybe the company backed down because it had made the claim in error. Or it realised, with the benefit of hindsight, how stupid the claim was. Or maybe it was a classic example of one side of a big company (ie the Content ID team) not talking to another side of a big company (ie the lawyers involved in the ‘Dark Horse’ case).

Either way, kudos to Warner, I suppose, for responding quickly to Neely’s complaint. But somewhat embarrassing that it made the claim to start with.

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