The trial over copyright infringement of Katy Perry's song 'Dark Horse' is set to begin next week.
According to The Hollywood Reporter, the reference and relevance of social media site MySpace in a dispute over a 2013 song come forth from the allegation when rapper Marcus Gray's 'Joyful Noise' was, in part, disseminated on MySpace. Gray, professionally known as Flame, claims that Perry's song 'Dark Horse' infringes his trademark by copying its underlying beat.
In order to succeed at trial, the rapper will first have to convince a jury that the defendants (Perry, producer Lukasz Gottwald and others) heard his song.
U.S. District Court Judge Christina Snyder in August addressed the issue of access in denying the defendants' motion for summary judgment, finding the plaintiffs "demonstrated a triable issue of fact as to access because 'Joyful Noise' achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and MySpace."
The defendants in return filed a motion in limine, asking the court to prohibit the discussion of MySpace and YouTube, claiming the screenshots of archived web pages provided into evidence amount to hearsay.
The judge disagreed and will allow it -- although she won't let Gray's expert Todd Decker play YouTube mash-ups comparing the two works or opine on how to lay listeners have found similarities among them.
On Thursday, defendants proposed a set of questions for potential jurors. Other than the standard inquiries about employment, previous jury experience and family life, defendants want to ask jurors whether they've ever used YouTube, Myspace and Facebook and how much time, if any, they spend on the sites. They also wanted to ask how they listen to music and which streaming services they use for it.
The latest pre-trial development comes from Gray's Friday filing that asks the court to either preclude an argument that the plaintiffs' copyright is invalid or consider it outside the presence of the jury.
Gray argues Perry's defendants who claimed that their right to allege the registration is invalid by not asking the Register of Copyrights to weigh in. Snyder in June granted a joint request to bifurcate the trial. The liability phase is currently scheduled to begin Wednesday.
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