Only a few weeks ago, I was dismantling the well trodden idea that Radiohead oughta be suing Sam Smith over “Midnight Train.”
This month all the chatter is about Radiohead suing Lana Del Rey over her personal manifesto, “Get Free.”
It’s true about the lawsuit. Although I know my song wasn’t inspired by Creep, Radiohead feel it was and want 100% of the publishing – I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court.
— Lana Del Rey (@LanaDelRey) January 7, 2018
The thing by which I was most struck was and remains that Ms. Del Rey claims to have offered Radiohead 40% of the pub. And even more ridiculous, that the 40% offer was rejected!!
Without even having heard a note of “Get Free,” I went not to far out on a limb and called this “ill-advised, on twitter.” And I quickly got some push back, giving me a measure of pause. But only that. I’ll gladly admit that now, when I have time to dig into it, I’m hoping I can justify my knee-jerk reaction with some musicology. Pretty sure I can, but let us see.
I also put it out there that article after article, nobody had the right take. Nobody points out that it doesn’t matter if “Get Free” was “inspired by Creep.” Inspiration is not infringement. We want composers to be inspired and inspiring. Otherwise nothing we hear on the radio will be enjoyable. Inspiration is fine, or at least, it’s supposed to be.
Relatedly, copyright infringement is a “strict liability tort,” so you needn’t mean to do it. It’s worse for you if you did it intentionally, but you can do it accidentally. The law deals with this aspect differently in different jurisdictions, but the spirit is fairly universal as far as I’m aware.
What does matter? Our three legged stool of copyright infringement!
- Access – whether Lana might’ve heard “Creep” first.
- Significant similarity – whether the two songs sound significantly alike in the end.
- Protected IP – whether “Creep” deserves protection under the law.
“Access” means that you might’ve heard the other song before you wrote yours. We don’t just ask you. We look at the opportunity and we try to be reasonable. Here, forget it. “Creep” was a big hit; hard to defend against “access” to a big hit song by a huge rock band. You can say you’ve never heard “Creep” nor even heard of Radiohead; you might even mean it with all your heart, but the assumption will be that you’re mistaken, or lying. That’s reasonable. Check.
Similarity and copyright protection are of course the heavy lifting and that’s what we do here. So, first let’s hear them.
“Get Free” by Lana Del Rey
“Creep” by Radiohead
Case closed, right?
No, don’t be lazy.
What’s that general expression you see so often in infringement complaints? It’s what Radiohead’s publishers put out here:
— brian mcbrearty (@brianmcbrearty) January 16, 2018
They said something like, “It’s clear that the verses of Get Free use musical elements found in the verses of Creep.” It is clear. They’re right. As an attorney friend of mine put it, “Three seconds,” and “Anyone with ears.” He too was right, little question about it. But it’s not all or nothing, you infringe by degrees.
Also, that third stool leg, protectable copyrightable intellectual property. Chord progressions (series of chords) themselves are not protectable copyrightable IP. They’re too essential to music creation to have their use limited to one song or one composer. Copyright law is written to protect intellectual property but without stifling creativity.
Bearing that in mind, the first thing that hits our ears is unquestionably the similar chord progression.
Creep goes | I III IV iv | and keeps on with it till the cows come home. “Get Free” uses the same four chords throughout it’s verse.
Super quick theory review: We use roman numerals instead of letter names because they’re agnostic with respect to keys. It’s more scientific. Uppercase numerals represent major chords, and lowercase numerals represent minor chords. Back to it.
Grab the nearest guitar and play, just picking a key here, something easy on a guitar… uh… hmm… no… not that one…
(This really is how the thought process went. This chord progression is not easy to play on a guitar.)
I III IV iv | (Roman numeral I is the key you’re in.)
Try Key of E: so that’s, E G# A Am. G# major isn’t an easy guitar chord, so let’s try Key of D: D F# G Gm. F# and Gm aren’t easy guitar chords either. Key of A? That’s A C#, just stop right there. I quit.
Okay, so this isn’t easy to play on a guitar. So what? Well actually, it’s not insignificant. While chord progressions aren’t especially protectable intellectual property, more unique progressions get a little more protection than well worn progressions get. And after a long century of rock and roll, it would be stubborn to ignore the fact that what falls easily under the hands of a mediocre guitar player is going to be commonplace in pop music composing. There I said it. And what does not fall so easily, it follows, is therefore more protectable, slightly. (This by the way should’ve been among the defenses used against “Taurus” by “Stairway To Heaven.” All the familiar material that’s so obviously common to both tunes? It’s not all that unique to either of them.)
Again, I III IV iv.
“Creep” is in the key of G, so that’s G major, B major, C major, C minor, over and over and over. Rock and Roll, people. Nothing wrong with playing stuff over and over.
“Get Free” plays exactly the same figure, but only during its verses. As the lyric says, “out of the black and into the blue,” Del Rey contrasts “Get Free’s” dirge-like versus with a hopeful and cheery chorus.
It happens that “Get Free” is sixty percent material involving that same chord progression as “Creep” employs throughout. 60% black and only 40% blue.
“So she lowballed 40% for what oughta be 60%?” you ask.
No. We’re not nearly done. That was all about a chord progression. She may not have infringed at all yet. Next we’ll look at the real currency of music copyright, melody.
Check back soon for that.
Update: Don’t check back soon. Been super busy. Hope to return to this and ten other musicology stories in the news before May.