Capes Sokol partner Michael Kahn landed in the national spotlight in 2019 with what he called “a David versus Goliath” case pitting St. Louis-based Christian artists against a wildly successful pop star with a string of international hits.
Yet Kahn succeeded in convincing a federal jury in Los Angeles to award his clients $2.78 million in damages for copyright infringement after determining that part of a song they’d written had been lifted and used in Katy Perry’s 2013 hit “Dark Horse.”
The damage award against Perry and several co-defendants came days after the jury found the two songs were “objectively substantially similar in copyrightable protectable expression,” and that the defendants likely heard the plaintiffs’ song prior to writing “Dark Horse.”
“They feel vindicated,” Kahn said of his clients after the verdict. “It was more about that than about the money, that’s for sure.”
Kahn said his clients approached him after fans and concert-booking staff noticed the similar beats and began asking if they had sold the rights to “Joyful Noise” to Perry. In particular, they felt the religious message of their song was tarnished by “witchcraft, paganism, black magic and Illuminati imagery” in Perry’s video, they said in their 2014 lawsuit.
“I was immediately struck when I listened to their song, and I confess I didn’t know about that genre of music, which is Christian gospel hip hop,” said Kahn, who was assisted in the case by Lauren Cohen and Jonathan Jones.
“I had no idea that such a genre existed. But I listened to their song, and I listened to the Katy Perry song and I was struck by how similar they were,” he said. Not trusting his own take, he retained Todd Decker, a professor and musicologist at Washington University in St. Louis, to seek his opinion. Decker agreed that the songs were substantially similar, Kahn said.
Kahn filed the copyright-infringement lawsuit in St. Louis, but it was transferred to Los Angeles, which made the case more difficult to try, he said. Still, on Aug. 1, a jury in U.S. District Court for the Central District of California found for his clients, St. Louisans Marcus Gray and Chike Ojukwu, and a third plaintiff, Emanuel Lambert.
“I wanted to give them the best shot I could, and I remember telling the jury . . . ‘Look, it’s been five years since we filed this lawsuit, and today is their one day to get justice. Whatever you do today, that will be it,’” Kahn said.
Now he hopes the judgment will embolden other musicians nationwide who believe their music has been ripped off.
“But there will be major pushback from the music industry, particularly from the recording-industry giants like Capital Records, Universal Music,” he said.
Kahn, who graduated from Harvard University in 1979, joined Capes Sokol in 2013 from his own firm, Kahn Gerber. In late 2018, Capes Sokol launched an entertainment and media practice, which Kahn leads along with Pete Salsich III, who had been general counsel for television and commercial production company Coolfire Studios.
From the player piano to the phonograph, Kahn said, the music industry has always lamented about how it’s going to make money whenever a new invention or innovation has appeared.
“Now with this case, with the ‘Blurred Lines’ case, the ‘Stairway to Heaven’ case, you know, the music industry is again issuing doomsday predictions [about copyright disputes],” he said. “But my hope is [that] the individual artist who has a long history of being mistreated and shunted to the side, that this will give [that artist] some more courage.”
That seems to be the case, he said, as other artists are approaching him “constantly.”