Streaming Music May Make Cases Like Katy Perry's More Common

To show that Katy Perry and the team that wrote her 2013 hit “Dark Horse” may have heard his song and stole from it, Christian rapper Marcus Gray’s primary evidence was that his 2009 song, “Joyful Noise” had played in the millions on YouTube and Spotify.

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Plaintiffs in copyright cases like Gray, who won a $2.78 million victory over Perry and her cowriters, must prove that the artist who stole from them had a reasonable opportunity to hear a song that was widely disseminated, a principle lawyers simply refer to as “access.”

But does access have any meaning in a streaming era when almost everyone has access to almost everything?

The question, as other issues at Perry’s high-profile trial, did suggest that technology may be outpacing copyright law and that more David vs. Goliath victories for relatively obscure artists like Gray over superstars like Perry may be the result.

“The law around it is a two-pronged test, access, and substantial similarity,” Michael Kelber, a Chicago attorney who specializes in intellectual property and technology, told. “The fact that the access prong is so much easier to show, that can be some potent evidence for a jury.”

Kelber said the Perry decision may show that “the floodgates are starting to open on these cases.”

“It’s not hard to get thousands of watches and likes,” he said.

Perry’s attorney Christine Lepera said after the decision that Gray’s team had shown “no evidence of access” as she vowed to vigorously fight the verdict.

Courts have long seen a steady stream of similar lawsuits filed by minor artists against major ones alleging song theft. Traditionally many of them have been thrown out simply because the plaintiff had no way of proving the artist heard their song, unless they had given them a tape, opened for them in concert or had some similar proof.