FEATURE:
Mutual Accord
IN THIS PHOTO: Lana Del Rey/PHOTO CREDIT: Getty Images
Is Radiohead’s Lawsuit Against Lana Del Rey a Step Too Far?
__________
THE latest high-profile legal threat in music…
PHOTO CREDIT: Getty Images
has come from Radiohead. A couple of years ago; Led Zeppelin were taken to court – accused of plagiarising Spirit’s instrumental song, Taurus, and incorporating elements into their hit, Stairway to Heaven. These are not the only cases of supposed plagiarism in music: for decades, artists have been taken to court and had to explain some very similar-sounding notes. A lot of the cases concern the most minor infractions. In the case of Lana Del Rey; she has been accused of ‘borrowing’ the chord progression/melody of Radiohead’s Creep for her song, Get Free. That is the closing track to her latest album, Lust for Life, and, if you look at both songs side-by-side, there are some similarities. Of course; Radiohead’s best-known song is a different tempo and sound: Lana Del Rey has not exactly copied everything about the track and produced something blatant. What we have are the slightest similarities many people have passed by. That is the point of my annoyance: it is only the lawyers for Radiohead who have picked up on the similarities. I wonder how involved the band have been in the lawsuit and whether it will actually progress to court. Del Rey has offered to give forty-percent of the publishing royalties to Radiohead: they want the full one-hundred-percent.
Variety explained the situation – and how such cases come about:
“I would say this case does cross the line,” said Bill Hochberg, an attorney at Greenberg Glusker. “This Lana Del Rey song is way too close to what is a rather unusual set of chord changes and a very distinctive melody line.”
Del Rey revealed the dispute in a tweet on Sunday, saying that Radiohead has demanded 100% of the publishing revenues from the song. She said that while her song “wasn’t inspired by Creep,” she has offered up to 40% of the publishing to settle the matter.
Typically in such disputes, the attorneys will communicate and try to reach a settlement without filing a lawsuit. Prior to litigation, both sides may also engage their own musicologists to study the similarities between the two compositions. Two songs may sound similar to the untrained ear, but a musicologist may be able to show that the similarities are trivial or commonplace.
“Musicologists are very good at showing where the note sequence is used in other songs and works going back to the Renaissance,” said Henry Gradstein, of Gradstein & Marzano. “Typically what sells it is where there’s a unique pattern of notes and keys and chords and rhythms.”
Asked about the similarities between the songs, Gradstein played them on his computer. “There’s some changes that sound pretty similar,” he said. “I get it. I get the case now.”
Gradstein thought it was notable that Del Rey offered 40% of her publishing rights, suggesting she may have gotten a musicologist’s report suggesting significant similarities.
“I don’t think you would offer 40% of your publishing if you believed the claim was frivolous,” agreed James Sammataro, an attorney at Stroock & Stroock & Lavan.
If the two sides cannot reach a resolution, Radiohead would file a copyright suit in federal court, and Del Rey’s attorneys would file a motion to dismiss. Sammataro said Radiohead would likely prevail on that motion. If the case reached a trial, both sides would bring their experts”.
That gives you an idea of what has happened and why it has come about – and what the next steps are. It seems extraordinary someone has taken the time to listen to all music out there in the hope someone will use some melody/chord structure from a Radiohead song. One can only imagine the lawyers have nothing better to do than wait for this opportunity to arrive. I suspect someone brought the case to the mind of Radiohead’s lawyers – maybe an eagle-eared listener or super-fan. Although there is proof and enough evidence to bring a case; I wonder why it has been brought about. Del Rey herself stated she was not inspired by Creep – it is ironic the same song has been the subject of another high-profile legal case. The Hollies sued Radiohead (and won) after noticing similarities between their song, The Air That I Breathe and Creep – and, as such, the linear notes credited Albert Hammond and Mike Hazlewood (The Hollies) as co-writers.
PHOTO CREDIT: Getty Images
This ‘third-generation’ lawsuit, one imagines, has been inspired by the nasty aftertaste Radiohead felt when they were sued: their lawsuit against Lana Del Rey has come about as, if they let it slide, it would be ironic and not fair to them. My contention comes when we are looking so forensically at music and cannot allow the similar notes/melody-lines/chord reflections to come in. If there was a blatant and embarrassing copycat scenario then, sure, a lawsuit would be justifiable. I have heard a lot of other songs floating around where you can hear other tracks in them – quite literally, as it appears. Listen to a band like Oasis and songs like Cigarettes and Alcohol. (A certain T. Rex song springs to mind). The riff from Oasis’ song bears a striking resemblance to Get It On (Bang a Gong). T. Rex’s Marc Bolan is long-gone but his estate lives on – I don’t remember a lawsuit being brought about in that case. I, as I said, here a load of songs where you notice familiar choruses, melodies and chord sequences. Many of them are accidental and, as such, it does not lead to any trouble. I suspect Noel Gallagher’s use of the T. Rex line was a lot more blatant than Lana Del Rey (and her new song). Artists have to protect their songs but there needs to be a line drawn and a chance for ‘offending’ artists to have their say.
PHOTO CREDIT: Unsplash
Lana Del Rey is being taken to court and, one suspects, Radiohead will prevail and get a lot of money from her. I wonder whether they could have entered a discussion and agreed on a co-writing credit between them. Rather than embroil in a long-winded legal process; why not open a dialogue and come to a compromise? You can’t prove a negative so it will be hard for Lana Del Rey to prove she was not inspired by Creep. Rick Nowels and Kieron Menzies have a co-writing credit on Get Free – Dean Reid is listed as one of the producers. Lust for Life is a major-label release so Polydor and Interscope must come into the fray. How much of the culpability lies with Del Rey herself?! I suspect the lyrics were written (mostly) by her – the compositional duties helmed by one of her co-writers. It is Del Rey, mind you, that is being scrutinised and chastised. It is not fair to an artist who, I believe, made an honest mistake and has made an attempt to offer compensation. Radiohead could come out and distance themselves from this controversy: the fact they have remained quiet means they are not willing to let this one pass by. We remember the infamous, multi-million-dollar case involving Robin Thicke and the song, Blurred Lines. The estate for Marvin Gaye noticed Blurred Lines sounded an awful lot like the 1977-released song, Got to Give It Up.
PHOTO CREDIT: Getty Images
Blurred Lines is one of the biggest-selling songs ever and, I wonder, did the commercial success of the song make a difference?! If it were a minor song, and few people shared it/played the song; would Marvin Gaye’s estate have noticed?! In that case; seven-million was handed to the victors: it was a blow to Robin Thicke and to producer and co-writer, Pharrell Williams. Do we draw lines and write up constitutions that provide guidelines to artists? Are we going to listen to every song and note any like-for-like notes/melodies? It seems mainstream artists are more susceptible to legal issues. If an independent band or underground artist cribbed (accidental or otherwise) from another act – either popular or new – I feel they would be immune and okay. The fact they would not have the money to satisfy those who bring about a court case speaks volumes. Radiohead’s lawyers are not looking for parity and ensuring this does not happen again. They are looking for remuneration and restitution. They want money and to set an example. Get Free is not one of the biggest songs (from Lust for Life) so I wonder how much damage will be done in the long-term. If the song were released and gained heaps of money for Del Rey and her writers; maybe, then, one could see just cause for a lawsuit. The royalties from Get Free will be sizable but it hardly seems worth going to all the trouble!
PHOTO CREDIT: Getty Images
There are a certain amount of chords and possibilities in music and, with thousands of tracks in the ether; there are going to be similar-sounding songs and ‘stolen’ lines. Music is looking for the most innovative and hard-working so, naturally, you will get unintentional intellectual theft. Lana Del Rey’s Get Free has some familiar embers but it is not exactly a shameless fraud that hoped to slip under the bar. Get Free does no disservice to Creep and Del Rey will be affected and damaged by the impending court case. I hope, truly, some sort of détente will arrive before it gets that far – it seems Radiohead’s people are determined to get their ‘fair share’. The emotional and physical health of Del Rey is going to be damaged as the case unfolds and progresses. I fear artists like her will think twice when writing songs; to the extent they are taking easy options and having to triple-check to ensure they have not used familiar notes. That may sound wise but are we creating a culture of fear where musicians are scared to make any move? Do we retroactively have to look at artists who might have made errors themselves; look at every song that comes onto the market and study every note?! Those are absurd lengths but why it is fair Lana Del Rey is in the firing-line – whereas other artists, who have employed another artist’s music in a much less subtle way free from jurisprudence and consequence?!
It does look like a genuine mistake by Lana Del Rey and her co-writers. I believe her when she says Creep did not come into her mind. The songs are very different and the fact there are some similarities is purely coincidental. Do we look through Radiohead’s back pages and ensure they have not caused any faux pas?! Their lawyers are doing what they feel is right – and the fact they were sued by The Hollies because of copyright infringement and plagiarism – meant there was special motivation to bring a case against Lana Del Rey. Accidents do happen and, naïve as that sounds; most artists are not deliberately looking to rip-off popular songs/acts. There is dispensation and justification criteria that mean those accused could evade punishment. ‘Access’ states that the infringer can claim they have never heard the original prior to writing their song. ‘Substantial Similarity’ means the average listener cannot tell the difference between the two songs – if they notice an obvious similarity, then it is hard to argue. Lana Del Rey is not the only artist, as we know, to have the spotlight put on them. George Harrison, Beyoncé and Sam Smith have all been taken to task. Smith, in 2014, was accused by Tom Petty’s publishers. They felt Smith’s Stay with Me shared chorus similarities with Petty’s I Won’t Back Down.
IN THIS PHOTO: Sam Smith/PHOTO CREDIT: Getty Images
Smith claimed never to have heard the song – maybe that is a fair point. He is twenty-two (or was then) so it might have passed him by. The fact it is a well-known hit makes me a little suspicious of the claim. Maybe, subconsciously, artists like Smith are inspired by other songs! How can you prove an artist has deliberately chosen to take another artist’s song and use adapt it for their own means? The list of fellow music-related court cases brings into focus the fact we have a problem – I feel it is one that cannot be solved. Artists will, inevitably, listen to a lot of music and that will bleed into their bodies. There are few that go out their way to mimic and deceive. I feel Lana Del Rey has taken a melody-line and sequence of chords that is fairly common – I expect other artists have done the same – and not intended to con Radiohead. I suppose something as high-profile and lucrative as music-making cannot be written off as a playground misunderstanding: artists need to preserve their privacy and ensure others are not using their material. I am not defending all those who have been accused of plagiarism but I feel there are better ways to settle these disputes than taking others to court and seeking financial vengeance. The fact Del Rey will, possibly, have to give all publishing royalties to Radiohead does not make the song go away – it will be out there forever and sound the same.
PHOTO CREDIT: Neil Krug
I know there is certain ignorance on my part – I am not well-versed regarding music law and the inner-workings – but I find it hard to believe Lana Del Rey wanted to rewrite Creep for her song, Get Free. I am not sure how the case will play out but one suspects it will not work out well for the American songwriter. She will learn a lesson from this but I fear the implications will go wider – many artists will reduce their ambitions or go to every artist they think might sue them (to get written consent). Legalities are important but there is a big difference between plagiarising a song wholesale and some chord similarities. Rather than drag things through the courts; a more reasoned and fair-minded approach would be better for everyone? A forty-percent cut (for Radiohead) seems like a good deal for Radiohead, considering – Lana Del Rey has not used any of their lyrics or anything other than melody and chord similarities. Whatever the cure/resolve is regarding plagiarism/similarities; I wonder whether cases like Radiohead vs. Lana Del Rey will extend across all music and we will see other lawsuits being brought. Will lawyers start looking at independent acts and dissecting all their music?! I am sad Lana Del Rey has been accused and Radiohead – or their lawyers, at least – are filing a lawsuit. Whatever your views on this latest plagiarism case; it is clear it sends a very harsh lesson…
PHOTO CREDIT: Unsplash
TO the rest of the music world.