Don’t hold your breath waiting for Radiohead to sue Sam Smith over “Midnight Train.”

Back in 2014, when Sam Smith’s had his mega-hit with “Stay With Me” (which won him four Grammy’s including the two biggies, SOTY and ROTY, and made Smith a star) it was widely observed that “Stay With Me” sounded a helluva lot like “I Won’t Back Down” — the late Tom Petty’s hit single recorded 25 years earlier. Petty never sued. Instead he reportedly made a polite phone call to Smith; an agreement was reached, and Tom Petty and Jeff Lynne (co-writer on “I Won’t Back Down”) received co-writer credits for “Stay With Me.”

Here we are three years later. Sam Smith has a new album, and his track “Midnight Train” is widely observed to sound a helluva lot like a song recorded 25 years ago, this time Radiohead’s “Creep.” As Stereogum’s Chris DeVille put it, “Midnight Train blatantly and mercilessly rips off Radiohead’s biggest hit, “Creep.” It has the same rhythm, the same basic chord structure, the same verse-to-chorus dynamics, and even a similar tremolo-laden guitar pattern.”

Let’s explore that.

Interestingly, when a Sam Smith track was picked to be the title song for the most recent James Bond film, Spectre, it stole the honor from an originally planned track by Radiohead. And when asked about it, Smith claimed to be more or less unfamiliar with the band’s work, leaving Radiohead fans incredulous and annoyed.

So might Smith have gone back and listened to a few Radiohead tracks prior to writing his new material and maybe, just maybe, a little bit of that seeped into his writing? Sure. But that’s not infringement. That’s just access and perhaps inspiration. Infringement is what winds up on the page. So let’s see what’s there, and we’ll take a close look at the rhythm, basic chord structure, verse to chorus dynamics, and similar tremolo guitar that Mr. DeVille called attention to.

Chord Structure

In this comparison by “chord structure” we and Mr. DeVille mean the progression that accompanies the verses, because clearly that’s where things sound similar. There are only four chords repeating in both songs, and the progressions are similar but not identical.

Midnight Train is I iii IV iv.

Creep is I III IV iv.

What’s that mean? Rapid fire theory lesson time.

  1. “Diatonic” means “belongs in the key.” Some chords belong in the key of A for instance, and some don’t.
  2. Diatonic chords are symbolized using roman numerals to take advantage of their upper and lower cases, uppercase for major chords and lowercase for minor chords.
  3. In any key there are 7 diatonic triads (chords,) so the numbers go to up to VII. There is no 8.
  4. The 7 diatonic triads (chords) are built upon, ordered, and named for the seven notes in the major scale of the key you’re in.
  5. In the Key of A, the major scale is spelled, “A – B – C# – D – E – F# – G# – A”
  6. The sequence of major chords and minor chords is always ” I – ii – iii – IV – V – vi – vii – I” (actually the vii is exceptional, neither major nor minor and needs a superscript symbol and I’m too lazy to look for the html for it right now. The vii is unimportant. Move on.)
  7. A is I; B is ii; C# is iii; D is IV; E is V; F# is vi; and G# is vii; and you can see that the diatonic chords include three major chords, I, IV and V, and three minor chords, ii, iii, and vi.

As we said, “Midnight Train” goes I iii IV iv, which is A C#m D Dm. And “Creep” goes I III IV iv, which A C# D Dm.

  1. They both begin on I, the tonic, the chord that is like home base in the key, A major. Most songs begin on the tonic chord, this is an insignificant similarity.
  2. They both move to a chord built upon and named for the third degree of the scale, C#, but “Midnight Train” goes to a diatonic chord, iii, C# minor while Creep goes to a NON-diatonic chord, III, C# Major. Midnight Train did the expected, Creep did the unexpected. This is a significant difference and we’ll explain why shortly.
  3. Next they both move to IV, D major.
  4. Then they both move to iv, D minor, another non-diatonic choice, the unexpected, and therefore a significant similarity.

Are those two C# chords so different?

There are a couple of ways to look at this. The first is to contrast the respective functional harmonies of a iii chord and a III chord. The former, a iii chord, is perhaps the most functionally ambiguous of the seven diatonic chords within a key. By “function” we mean, how does the chord serve the ebb and flow of the song. What did it follow? What does it lead to? The iii chord’s ambiguity makes it difficult to predict its intent. You need to wait and see where it goes before you’ll know how it served the progression. But that doesn’t mean it lacks function altogether. It’s just uncertain and subtle. In this case it goes to IV, and that’s a common role for the iii. I’m going to call it a “pre-pre-dominant.”

What’s a pre-dominant much less a pre-pre-dominant? Rapid Fire Theory Lesson Again.

  1. The world of functional harmony revolves around Tonic and Dominant, the I and the V, the stable and the unstable.
  2. Tonic is stable like home base. It’s where you can linger most comfortably.
  3. Unstable dominant chords tend to “resolve” to stable tonic chords. No song ever ends on a dominant chord. It would be the equivalent of a cliffhanger. It would feel incomplete. It would be like ending a sentence with “so then…” and then nothing follows.
  4. The other main function is the sub-dominant function and it belongs chiefly to the IV chord, less stable than tonic, but more stable than dominant. It’s where a little bit of story development can happen before an idea peaks or turns at a dominant chord.

 

Thousands of songs have been written with just these three chords. I, IV and V. But most song structures use four bar phrases. And often one chord to a bar and four chords to a phrase. Sometimes just those four chords over and over for a long time. And that’s the case here.

Four chords — Tonic, “something,” Pre-dominant, and “something else.”

The fourth chord is most often dominant, the end of the phrase that leads to the beginning of the next rather like a conjunctive adverb.

Here, in both songs, we have a non-diatonic iv chord acting as a dominant. This is an interesting, but not rare choice, the minor-plagal-cadence. In Jazz theory, we’d probably point to the included lowered seventh and lowered thirteenth of V and read these as very dominant scale tones with a strong tendency to resolve down by half step to tonic.

So it’s an interesting choice and both songs make it. Score that one for plausible infringement.

So what’s that second chord? If it’s iii and it resolves to a pre-dominant in the third measure as it does here, I’m calling that “pre-pre-dominant.” Or maybe “secondary tonic.” I think I’ll coin that one too if nobody has already. But I like pre-pre-dominant better where I can apply it because it has clarity of purpose.

Midnight Train’s iii chord leads naturally to the pre-dominant. All kinds of reasons it functions that way. One is that the bass line movement from the first degree of the scale to the third has momentum in the direction of the fourth. But chiefly that the iii chord has two of three notes in common with the I chord and sounds similar but less stable. The most natural resolutions of that instability are either back to I where it came from or half step moves to IV. The iii chord contains two notes which can resolve by half step to IV, and hence, this is its most available next move. Two notes move a half step, the third note moves a whole step, and you’re on IV.

Creep’s second chord is III. Compared to the iii, the III chord has those same two notes that tend toward moving to IV, yet it’s most natural function is not to IV but to vi. And the reasoning might be easiest to explain with this ratio: that V is to I as III is to vi. III is, as we say, the V of vi. It’s dominant to vi. Dominant being the least stable function, III most naturally moves to vi.

But here it doesn’t. It moves to IV. It can do that. There’s even a dumb name for it — a deceptive cadence, not its first cadential inclination but an available course.

Also III isn’t diatonic. This is itself a departure from the norm, again not the first inclination but an available course. (There’s a point coming.)

So “III” is not “iii.” One is diatonic. One isn’t. One leads very naturally to the next chord, “IV” and one quite a bit less naturally.

Where does this leave us? Creep’s III chord is a substantial creative choice, and iii hardly is at all! So Midnight Train didn’t adopt the most interesting choice in Creep’s progression, the one that more than any other chord gives Creep its character.

Prior art, and what’s not protectable in the first place?

In order for music to enjoy copyright protection it needs to be original. And while originality itself can be a difficult thing to quantify, there’s a good reason you’ll hear it said, “you can’t copyright a chord progression.” For the most part, it’s true, you can’t. Why not?

Copyright law is not intended to stifle creativity. We want to encourage composers and songwriters to keep producing new music that’s enjoyable. And while “enjoyable” new music is partly about originality, we like a little familiarity as well — something we can latch onto and understand.

That why there are so many absolutely original and copyright protected songs that to some extent share common chord progressions. Chords and chord progressions are the basic elements of music, “building blocks,” available and shared by all.

And among them, the “I – iii – IV” that Midnight Train employs is about as common as they come. You’re hearing it all the time. Imagine the introduction to the Carpenters’ “For All We Know” (one of my favorite songs ever), or Paul Young singing, “If we can solve any problem, why do we lose so many tears?” on “Every Time You Go Away,” or Elton John singing “I remember when rock was young, me and Susie had so much fun,” on “Crocodile Rock” or nearly all of the Boomtown Rats’ “I Don’t Like Mondays.” We could probably do this all day. That’s the I-iii-IV progression, a standard building block. So to that point, Midnight Train is just playing through a very standard progression that can’t be claimed by anyone.

By comparison, the first three chords, I – III – IV, from “Creep,” have a distinct ring. So much so that The Hollies came calling to say “Creep” sounds a helluva lot like our song from 20 years ago, “The Air That I Breathe!” (If you’re wondering, yes, it goes next to the iv chord. So all four chords were the same and the melody quite similar as well.) The Hollies writers got a songwriting credit for “Creep.”

Can one successfully argue that a less distinct and common chord progression might infringe upon a more distinct and less common one?

Does it matter that both progressions end on a somewhat unusual iv chord which functions similarly to V but is a bit darker and more melancholy. Midnight Train’s four chords are the same as the chorus to the Bee Gees’ “Nights On Broadway,” “I iii IV iv.” No, it doesn’t matter. For a chord progression to be a substantial creative choice protectable by copyright the threshold for originality is extremely high. It would need to be novel. These progressions are unremarkable. The most interesting part is the III in Creep, and Midnight Train doesn’t share in it. So taken by itself, that the chords have the “same basic structure” doesn’t matter much unless the melody were very much the same.

Is the melody very similar?

No. In fact, the Midnight Train melody makes very specific use of the fifth degree of the scale, the one that most defines that iii chord’s character.

 

Are the lyrics very similar?

No.

What about that tremolo guitar?

Yeah, there’s that. The introductions sound the same. Bass and drum groove, sparse, with tremolo guitar arpeggiating the chords. But these are production elements. They aren’t on the page. Copyright protected elements can be written down on sheet music. The drum groove is different. And the guitar notes since they outline the chords are different they too make strong and melodic use of that iii chord.

Conclusions

An infringement suit will likely never happen. I predict Radiohead will be asked about it a lot and they’ll take the high road. It’s probably the only good course available to them. And that will be that. Meanwhile, Midnight Train is going to be a huge hit for the same reason the two songs are substantially different — that iii chord and the beautiful melody that they built around it.

Written by brianmcbrearty