The question, as other issues at Perry’s high-
profile trial did, suggested 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.
“Whereas 20 years ago, where everything was
controlled by the music industry, now anybody
who wants a song can hear it, or stumble across
it somehow,” said Timothy Foster, a New York
attorney who works on copyright cases including
a current lawsuit where a singer is suing Carrie
Underwood over her “Sunday Night Football”
song. “It’s easier to argue that they could have.