When Chair of the Washington University Department of Music Todd Decker took the stand in one of the most high-profile music copyright cases in recent years this past July, he did something that rarely falls under the responsibilities of traditional expert witnesses: sing.

A Los Angeles jury found that the writers and producers of pop singer Katy Perry’s 2013 hit “Dark Horse” infringed upon the copyright of Christian rapper Flame’s 2008 song “Joyful Noise” on July 29 after a two-week trial. The defendants, who included Capitol Records, Perry and other collaborators, now owe the creators of “Joyful Noise” a total of $2.8 milllion.

The “Joyful Noise” creators first filed a complaint in July of 2014 in the Eastern District of Missouri, Flame’s home state. The St. Louis-based firm that had initially been representing the plaintiffs reached out to the Wash. U. Department of Music to inquire whether any faculty member would be qualified to listen to the two songs in question and determine whether they were “substantially similar.”

Decker answered the request, almost instantly noticing the multiple similarities between the two tracks.

“Between ‘Dark Horse’ and ‘Joyful Noise,’ I located a combination of elements,” Decker said in an exclusive conversation with Student Life. “…You have the same rhythm, the same use of the scale degrees, the same iteration pattern…And on top of that, in both songs, this same eight note pattern serves the same function. That’s where I use the word ‘ostinato.’ It’s a pattern that repeats cyclically, so it repeats over and over again, and it’s kind of like the skeleton on which everything else hangs.”

Decker, who has been a Wash. U. faculty member since 2007, is an American pop music scholar, musicologist and author of four books. He is trained in and has dedicated much of his work to the field of “musical borrowing,” which he believes substantially prepared him to serve as an expert witness on the “Dark Horse” case.

Although certain elements of each song, such as the lyrics and main melodies, greatly differ, it’s that underlying, repeating musical phrase, or ostinato, that Decker found impossible to ignore.

“I said to the jury, ‘It’s like sections of toy train track that are laid out, and these two songs have, in some ways, have identical pieces of train track,’” he said.

To Decker, the fact that all these elements were in “combination” with each other to create the ostinato solidified the similarity. Additionally, he noted a comparable timbre, or, as he put it, “color of the sound,” between them.

Over the past four to five years of working on the case, Decker said he delivered his argument in two reports totaling 25,000 words, during a seven hour deposition and on the stand for a total of three hours in July. Expert witnesses such as Decker are paid upfront by their clients. Decker stated that he had no personal financial interest in the actual outcome of the case, as he would receive none of the plaintiff’s monetary winnings.

He was only allowed in the courtroom on the day of his own testimony, and was thus absent the day Perry took the stand. He was solely able to provide his argument for why the two songs are “substantially similar” and could give no opinion on what the actual decision of the case should be.

“I had no knowledge of any other aspect of the case,” Decker said. “You’re told, ‘Here are two pieces of music. Are they the same? Are they substantially similar?’…When I’d start to stray outside the question I’d been asked, I would be stopped by the judge, by the attorneys on the other side and by the attorneys on my side. There was a specific body of knowledge that I was supposed to deliver as an expert.”

Decker’s years of teaching music were instrumental in convincing the jury of his opinion, as he has developed a strong understanding of how people hear music.

“When I was on the stand in federal court for three hours in Los Angeles, I sang. I sang a lot,” He said. “Because I recognized that the thing that is similar about these two tracks, it’s not the sung lyrics, it’s not the rapping, it’s this instrumental line. So it’s a line that’s only played by an instrument. It’s a synth line. And I know from teaching music that some people, people who aren’t trained in music, some listeners can’t hear an instrumental line. They just can’t hear it. So my strategy for helping the jury to hear that line was to sing it.”

Although the jury seems to have heard the similarities Decker did, many of those following the case online did not. Months after the trial ended, Decker continues to receive a flood of emails every day critiquing and attacking him and his argument.

The case has been heavily discussed online through social media platforms and message boards. A video by YouTuber Adam Neely titled “Why the Katy Perry/Flame lawsuit makes no sense” has earned over 2.3 million views since it was posted in early August.

“There’s only a certain number of notes that can be recombined in musical compositions,” Neely said in the video. “And I think it sets a dangerous precedent to say that somebody can own such a specific piece of our shared musical language. Imagine if somebody or some corporate entity could own a word or a phrase. What kind of corporate, capitalist hellscape would that usher in?”

However, Decker stressed that it is the fact that the songs share a “combination of elements” that makes the similarity between them so significant.

“I don’t think this case sets a dangerous precedent at all,” Decker said. “I wouldn’t have gone into it if I wasn’t convinced that there was significant similarity, and that’s the legal standard, significant similarity between these two melodies because of the combination of elements.”

Decker expressed that since much of the criticism of the case comes from those reading about it online rather than having been in the courtroom and experiencing the trial, opposition to his argument such as that in Neely’s video is “without foundation.”

“To go from this context of a very specific argument, reasoned out over many years in thousands of words to a decision and then to a ten-minute YouTube video from someone who has no real knowledge of the case and who is also making money off of that YouTube video…That strikes me as a professor and as a citizen as really problematic,” Decker said.

Since the “Dark Horse” case, which was Decker’s first time serving as an expert witness, he continues to do this kind of work. However, he emphasized that he only takes cases in which he genuinely shares the client’s stance.

“In other cases I’ve worked on, I’ve had to say to lawyers who want me to say there’s no borrowing or copying, I’ve said there is,” he said. “And folks who want me to say there is, I’ve said there isn’t.”

Although Decker never met Perry, she remains a presence in his life. Having taught classes at Wash. U. such as “Popular Music in American Culture,” he noted that he often puts Perry’s music on his syllabus. Even after the trial, “Dark Horse” continues to follow him.

“My wife and I were on vacation and the song came on,” Decker said. “It was like, ‘Will this ever go away?’”