Katy Perry, Flame and the magic four-chord progression

Posted on by Matthew Wright

I’ve been a bit puzzled by the copyright suit that ended the other week in the US. According to the news reports, pop-star Katy Perry’s 2013 hit ‘Dark Horse’ copied a 2008 song featuring Christian rapper Flame, ‘Joyful Noise’. After a four-year court battle, a jury agreed and Perry, her co-authors and her label were ordered to pay damages.

I hadn’t taken much interest in it because I find Perry’s music pleasant enough, but rather vapid – I don’t actively seek it out – and rap is one of the three kinds of music I can’t stand (the other two are Country and, of course, Western). The concern, though, is the precedent that this case sets, which has provoked something of a shit-storm in the music industry, because it runs to the heart of how songs are actually written and produced.

Me practising the Carlos Santana Secret Chord Progression on my vintage Roland Alpha-Juno 2 (it’s D-minor/G, repeating, I’ve got the G on first inversion here in the photo. Just saying).

I can see the point. As far as I can tell the songs are actually very different – totally different melodies, different chord structure (Perry’s is G-flat, D-flat, B-flat minor, B-flat minor/A flat; Flame’s, as far as I can tell, is B-minor. Er – that’s it, I think) and radically different vocals. That’s the puzzling bit. Where’s the infringement? Apparently the argument came down to the similarities between an ostinato riff used throughout ‘Joyful Noise’ and in the chorus of ‘Dark Horse’.

The riffs were not actually the same, and both were based on a descending minor scale, as used in the adagio from Bach’s Violin Sonata in F-minor, BWV 1018. Or, for that matter, ‘Old Man River’.

The issue, apparently, is that a legal decision which, in effect, copyrights a basic building block of music – such as a minor scale – also sets a dangerous precedent. And that’s what has got the music industry so riled up. It’ll stifle creativity at the very least. So I guess it’ll be a matter of ‘watch this space’ – I gather Perry’s legal team are looking at an appeal.

And here I am playing the same instrument during a recording session in my mis-spent youth (notice my Korg MS-10 to the right, and the Morris Minor boot lid behind me). I can’t remember what I was playing, but it was probably ‘Louie Louie’.

The odd part is that there are many songs that are closer in a technical sense because they all use the same chord progression – specifically, I, V, vi, IV. Sometimes the song uses them in a different order – Toto’s ‘Africa’, for instance, is vi-IV-I-V – but those four chords are really, really common. Artists such as Ed Sheeran, Matchbox Twenty, Taylor Swift, Boston, Lady Gaga, Lana Del Rey, Devin Townsend, Nine Inch Nails, Natalie Imbruglia, Beyonce, Clean Bandit, Pink, Aha, Demi Lovato, Bruno Mars, Steve Winwood and a host of others have all written songs around these progressions. All these songs are clearly original to their composers and very different.

Still, the fact that pop music, particularly, operates to such a relatively narrow array of chord progressions and harmonic combinations means that, inevitably, there must be coincidental similarities between some songs. The only way I can think of around that is to do something bizarre – writing a piece in 13, for instance (5/8 and 4/4 in alternative bars) or juxtaposing different keys. I think something musically interesting would likely follow, but the commercial prospects wouldn’t be high.

On which note, as it were, let’s end with the Axis of Awesome and their mashup of every four-chord song ever written:

Copyright © Matthew Wright 2019

14 thoughts on “Katy Perry, Flame and the magic four-chord progression”

    1. It’s simply extraordinary. I guess in a way it’s a function of the fact that only certain combinations of sound actually ‘work’ musically – coupled with the homogenisation of commercial music these days. But still…. sigh…

      Incidentally, I’m still having trouble authenticating to your site so I can make comments – I’ll look at some of my settings also. Part of it might be that I tend to use my phone for some WP access, and their app isn’t the greatest.

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      1. If it’s more than I’ve already changed then I’d have to have someone look at the problem who knows coding. I removed the requirement for signing in each time. Unless WP put it back? H’m…

        I reply to comments sometimes via my phone, but that’s it. The WP phone app is like trying to maneuver a supertanker in a pond.

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      2. I just had a thought, which I sometimes have. 😉

        I’d changed the setting requiring signing in each time on my website, but not the WP page, so now that’s done too. On the website the dashboard and the like are WP. All I had done when it was setup was have someone customize the appearance. The one time I tried to fix something beyond that I crashed the site. I swore off venturing into the coding after that.

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        1. Yes, I tend to veer away from WordPress programming too. I had to dig in to some of their coding tricks once to find a way of blocking a white supremacist who had taken umbrage at my calling out their community and was stalking me. Turns out you can block words, people and IP addresses…and I did – but that got me well beyond my comfort zone (in every sense…)

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  2. I think some people don’t view copywright infringement as impacting on their rights, more as an opportunity to make some money. Four years of court battling must have cost a fortune, more then an out of court settlement or some such.

    Niki Lauda once said if he was in America he could sue his mother over loss of earnings due to being born in the less wealth Austria (he was joking of course). The US kind of has that gung-ho, sue-happy reputation. No matter the coincidences involved.

    I like Joe Scott’s YouTube channel, it’s about accessible science. He did a fun clip on coincidences the other day: https://www.youtube.com/watch?v=NUZL_sUCZFY&t=298s. Well worth a watch. That’s an order!

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    1. I’ll check it out – thanks for the heads-up. That actually reminds me of something about copyright and YouTube – I sometimes see labels on YouTube videos that people have obviously posted from elsewhere, along the lines of ‘no copyright infringement intended, copyright remains with the owners’, as if by disclaiming ownership of the copyright they are somehow also avoiding liability. But that isn’t the concept at all. It’s all to do with the right to allow somebody to copy. The act of re-posting something that these YouTube users haven’t a license for is, itself, the breach of the copyright. And by actively denying that they own the copyright, they are basically openly admitting that they don’t have any right to copy, hence accepting liability for the breach. Sigh…

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      1. Yes, YouTube is another massive one for copyright. Fair use policies. There’s a film called Swiped that’s just released to terrible reviews, with the director personally going around threatening all vloggers who criticse it with lawsuits. Quite the marvel to behold.

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  3. Decades ago I took a course in copyright law which means, for any contemporary usage, it’s useless. The history of copyright, though, remains useful, at least for purposes of discussion.

    If memory serves, when the US Constitution was first adopted, a copyright was valid for 17 years. Don’t ask me why such an odd prime number was selected. I’m sure there was a reason, but if I ever knew, I’ve forgotten. Besides, the reason for such a limitation on copyright was the recognition that invention does not occur in a vacuum. (You alluded to this process.) One might win the race to the copyright office, or the patent office in a different context, but a limitation on copyright recognizes both that society plays some role in invention, and that although copyright acknowledges the uniqueness of a particular individual’s contribution with (potentially) monetary reward, after the copyright period the item goes into the public domain.

    Well, that was the tag end of the 18th Century, and arguably things were a LOT simpler then. Such as the issues that were put in front of juries. Wonder what a jury of musicians, who actually understand how music is composed and produced, would have decided the case? As opposed to the average US citizen who sat on the jury without any particular knowledge other than, say, what they listen to on the radio?

    The problem with artistic creation is that, once it leaves the space between one’s ears, it becomes a commodity to be exploited. It seems to me that most of present copyright law is written to extend the “rights” of whoever owns the copyright — not always or even usually the original artist. Who owns the copyrights to the compositions of The Beatles nowadays, for example? But copyright laws extended the copyright period for the sole reason that original artistic productions became valuable commodities that can, apparently, be exploited in perpetuity, and the public domain be damned.

    Oddly, too, I seem to recall case law to the effect that a mathematical proof cannot be copyrighted. But then, no one ever made money in any direct sense by proving, say, Fermat’s Theorem. Which is probably the reason why funding for scientific/mathematics research is always uncertain.

    It seems I digress but on appeal of the district court’s decision it might be interesting to see who, if anyone, files an amicus brief and what issues are argued.

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    1. I think this case needs to be taken to appeal – I am not familiar with the US court system but presume there’s a clear pathway. I’m not intimately familiar with US copyright law, other than in general terms, but have had to stay on top of the New Zealand system in detail – it’s bread-and-butter for me as a non-fiction writer, because so much of my source material is copyright to others. I was also professionally involved, a while back, in the copyrights associated with the imagery used on NZ’s banknotes. I was on the committee that selected the historical figures used on each denomination, back in 1991-92, and I subsequently checked the copyrights associated with the particular portraits, which remain in use. A fascinating exercise and one that underscores just how complex copyright is.

      The problem I have with the Perry case is that it sets a court precedent relative to ownership and copyright on a basic musical building block, a minor scale in our ‘well tempered’ notation system. And I have to wonder when that principle will be extended to the other arts? I gather there was a fracas last year when a woman tried to trademark the word ‘cocky’ in relation to romance novels. I never read such stuff and know nothing of it, but apparently ‘cocky’ is a key word for that genre. Trademark is a slightly different concept but the principle involved – attempting to ‘own’ a common building block through litigious means – is a concern.

      Until now, ordinary words and even book titles can’t be copyrighted – hence ‘The Lord of the Rings’ doesn’t infringe ‘Lord of the Flies’ and vice versa – although I gather a distinctive word associated with a book’s brand (‘hobbit’) would run into trouble. I gather there were problems associated with using the nickname ‘hobbit’ for H. florenisis in public talks, because of that issue: the word is property of the Tolkien Estate. But what happens if somebody starts trying to get legal precedent set over titles made up of ordinary words? Or tries to copyright broad story principles, e.g. the classic hero journey – which would make The Hobbit, The Wizard of Oz, Star Trek and a lot of other tales infringing?

      So to me the Perry issue is thin end of the wedge stuff for all IP created within the arts – writing included. And I hope there’s an appeal that throws the ruling out.

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