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Musicians Seeking Their Groove, In Court

Lana Del Rey performing
Lana Del Rey. Photo by Nick Stroil.

Beyonce recently captured the world’s attention with her performance at Coachella, but songwriters may want to take note of a more low-key music festival moment that took place a few weeks prior.

At the Lollapalooza festival in Sao Paolo, Brazil, Lana Del Rey performed her song “Get Free” as part of her encore. In a seemingly offhand comment after the song finished, she said, “Now that my lawsuit’s over, I guess I can sing that song any time I want, right?”

The disagreement in question – the very existence of a lawsuit is disputed – hinged on the similarities between “Get Free” and Radiohead’s 1993 hit “Creep.” The murky state of the lawsuit, or possibly dispute, or possibly disagreement, goes to show how complicated intellectual property laws can become, especially when applied to music.

In January, Del Rey claimed that Radiohead’s lawyers demanded 100 percent of the publishing rights to “Get Free,” an astounding figure if true. In a tweet, she claimed she had offered 40 percent but that the offer had been rejected. Radiohead’s publisher, Warner/Chappell, issued a statement in response confirming ongoing copyright negotiations, but denying that any formal lawsuit had been filed or that it had rejected a 40 percent offer.

Musical copyright is complicated by the fact that most pop songs involve two separate forms of intellectual property: the recording and the musical work itself. The sound recording copyright is usually the business of record labels, while publishers are concerned with composition copyrights. No one is accusing Del Rey of sampling Radiohead’s recording without permission, so the dispute here hinges on the published musical composition alone.

Because the parties’ accounts of the disagreement vary significantly and the public does not have access to the private negotiations involved, much of the writing about the dispute is speculation. According to Radiohead’s publisher, Del Rey’s song uses “musical elements” found in “Creep,” a phrase which likely refers at least in part to the chord progression used in its chorus. Because chord progressions are so commonly duplicated, they can’t be copyrighted outright – but a melody based on them can, which is where “Get Free” may have crossed a line. As musicologist Dan Bogosian told Vulture, “… the verses of ‘Get Free’ sound more like Radiohead’s ‘Creep’ than Prince’s cover of ‘Creep.’”

It is no secret that pop music can sometimes be formulaic. The Axis of Awesome had a viral YouTube hit several years ago with “4 Chords,” a six-minute demonstration of the prevalence of a popular chord progression; earlier, comedian Rob Paravonian used Pachelbel’s Canon in D to make much the same point. But the question of how much overlap is too much is not especially funny to the performers, songwriters and publishing companies involved in disputes like this one.

Del Rey said outright that she was not inspired by “Creep,” but intent alone does not matter in copyright law, as George Harrison discovered when he “subconsciously” plagiarized an earlier hit by the Chiffons. Ironically, “Creep” triggered a copyright infringement suit for Radiohead years earlier, in the other direction. Songwriters Albert Hammond and Mike Hazelwood, who wrote the 1974 tune “The Air I Breathe,” obtained an undisclosed percentage of publishing rights and royalties for “Creep” in an out-of-court settlement. While it is not yet known if the songwriters of “Creep” will eventually get credit and royalties for “Get Free,” Hazelwood’s estate and Hammond could both potentially benefit if so.

Still, sharing credit and some percentage of royalties, even for unintentional infringement, may be a better outcome than the messy alternative of defending musical intellectual property in court. For an example, just consider the ongoing saga of the 2013 hit “Blurred Lines.” Pharrell Williams and Robin Thicke recently asked the 9th U.S. Circuit Court of Appeals to reconsider their case after its March ruling upheld a lower court’s decision to award Marvin Gaye’s estate 50 percent of the song’s royalties. Williams and Thicke’s attorneys filed a petition for the court to rehear the case en banc, citing the decision’s conflict with existing precedent and its potentially massive effect on music publishing.

The basic question in the “Blurred Lines” case centers on whether musical copyright protection requires work to be “virtually identical” or just “substantially similar” in order to establish infringement. As attorney Kathleen Sullivan pointed out in the filing, there are a limited number of musical notes in existence, and many genres of popular music are essentially defined by features their songs hold in common. The 9th Circuit has not yet said whether it will take up the case again, though such requests are only rarely granted.

If it does not, composers and songwriters will need to be especially wary of the line between “homage” and “infringement.” This is because in the case of “Blurred Lines,” unlike that of “Get Free,” the argument did not have to do with melody, chords or rhythm, but with vaguer elements allegedly evoking Gaye’s work. In an interview with GQ, Thicke said he wanted to write a song with Williams that would evoke the “groove” of Gaye’s “Give It Up.” Much of the decision in Gaye’s favor had to do with the song’s subjective feel, not objective similarities between the works.

As Forbes contributor Adrienne Gibbs observed, if the “Blurred Lines” ruling stands: “It won’t be enough to just say that someone inspired a groove. All grooves must be acknowledged on paper, permissions asked and licensing granted before the song gets published. If the grooves are too similar, it could be considered groove theft.” The prospect has rattled many artists, as evidenced by a 2016 amicus brief supporting Thicke and Williams signed by 212 musicians worried by the initial verdict.

Composers and songwriters deserve to be compensated for their work, just as other creative professionals are. But these disputes demonstrate that copyright law, which is already complex in the United States, can get downright murky where music is concerned. Access to the original work has long been a key element, but in the age of Spotify and Apple Music, proving an artist has never heard a particular song is a high, if not impossible, standard to meet. And as the “Blurred Lines” case showed, an artist can lose an infringement case even in the absence of overt melodic similarities.

Until the courts, or regulators, determine a fair way to measure how much overlap is too much, we are likely to see more of these high-profile disputes.

Executive Vice President and Chief Operating Officer Shomari D. Hearn, based in our Fort Lauderdale, Florida headquarters, is among the authors of The High Achiever’s Guide To Wealth. He contribued to Chapter 12, “What Estate Planning Documents Do I Need?" and to Chapter 17, "Living And Working Abroad." He also contributed several chapters to the firm’s book for adults age 55 and older, Looking Ahead: Life, Family, Wealth and Business After 55.

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