photo: Edward Lich

photo: Edward Lich

In the wake of the $2.78 million copyright infringement decision against Katy Perry’s “Dark Horse,” the industry is getting very, very concerned.  Here’s what one industry attorney is doing about the scary rise in questionable copyright infringement litigation.

Ed McPherson is one of biggest attorneys in the music industry.  And he’s getting worried about a spate of recent music copyright infringement decisions with highly-controversial outcomes.

The latest of those decisions involves Flame, a relatively-unknown Christian rapper who scored a $2.78 million award after suing Katy Perry, producer Dr. Luke, Capitol Records and others involved in the 2013 hit, “Dark Horse” for copyright infringement.  McPherson doesn’t agree with the decision — to put it mildly — and deeply questioned whether the U.S. court system is producing reasonable outcomes.

I asked McPherson if the music industry is in trouble.

“I think it is, I really see this as an outgrowth of the ‘Blurred Lines’ case,” McPherson noted, while referencing the extremely controversial victory handed to the Marvin Gaye estate against Pharrell and Robin Thicke.

Those were “horrendously wrong” decisions, according to McPherson, with an ongoing copyright lawsuit against Led Zeppelin over alleged infringement on “Stairway to Heaven” also noted.  The “Stairway to Heaven” case is now being heard on appeal, with an initial victory by Zeppelin in limbo.

Earlier, I’ve written that the music industry is facing what I call a “copyright trolling” crisis, with a reference to the dramas of “patent trolling” impacting the tech industry.   But McPherson pointed to another industry — film and TV — in which certain production elements like chase scenes are ruled by courts as scènes à faire, meaning they are so commonplace to building scenes and stories that they are never considered copyrightable.

The music industry, by comparison, lacks those scènes à faire standards, even for basic building blocks like descending scales and simple rhythms.

In the case of music, judges and juries also lack basic music theory knowledge and can’t discern common building blocks.

“A judge looks at [a music copyright case] and says, ‘Look, I don’t speak this language, let’s hear from the experts’.  You then get one expert saying this is a car chase or a rabbit out of a hat for a musician, and then you have another expert saying, ‘no, this is the most unique piece of music I’ve ever heard in my life’.”

I asked how it was possible that two trained musicologists could possibly disagree on the musical equivalent of a chase scene.  And the answer was pretty depressing — with huge implications for the future of musical creativity and expression.

Here’s my interview with Ed.