Avoiding Copyright Infringement: What Lana Should Have Done

Jan 12, 2018

Radiohead Denies Suing Lana Del Rey Over Copyright (but Still Wants Credit) (New York Times)

Benom’s Take:

We’ve seen an uptick in copyright infringement plagiarism claims ever since the Marvin Gaye estate won a huge copyright infringement lawsuit against Robin Thicke and Pharrell over their song “Blurred Lines.”

Since then, we’ve seen high profile cases involving big names like Led Zeppelin, Bruno Mars and Men At Work, and others. Living in a post “Blurred Lines” world, the lines between “inspiration” and “plagiarism” truly have blurred.

Earlier this week, Lana Del Rey confirmed a report that Radiohead was considering suing her over her song “Get Free.” The claim is that “Get Free” is substantially similar to Radiohead’s 1993 hit “Creep.”

So how do we consider if a song has been copied and possibly infringed? There are three initial tests for this under U.S. Copyright Law. If the answers are yes to all three, then it moves into deeper legal waters.  

The three tests are:  

  1. Are the songs substantially similar?

  2. Did the defendant have access to the song allegedly infringed?

  3. Does the plaintiff have proof of copyright ownership of the work allegedly infringed?

In the Lana Del Rey case…

On #1… the similarities certainly seem substantial and hard to miss.

On #2: “Creep” was a huge hit in 1993 (and even went through its own copyright infringement case between Radiohead and The Hollies), so it’s certainly likely Lana Del Rey heard it (read: had “access”) before writing “Get Free.”

On #3… Warner/Chappell and other publishers of “Creep” absolutely have proof of copyright ownership.

Considering these three factors, it is surprising that Del Rey’s team did not initiate a license request to use “Creep” as the compositional basis for “Get Free” to avoid this whole mess.

In most cases, when a major artist on a big label even questionably seemed to copy another artist’s song, the label’s legal and business affairs departments go into preemptive action. Before anything is commercially released to the public, the label’s legal team and/or artist’s legal team will contact the copyright owners to obtain a license. If a license can’t be obtained, that song remains “in the vault” and unreleased to the public until the licenses are cleared.

This “lifting” from other songs is referred to as an interpolation and requires a license from all copyright owners of the song. An interpolation is whenever a song copies from another composition and interpolates it into a new composition. In other words... borrowing from the song as written, not the produced sound recording of a song.

In the case of “Get Free” and “Creep,” we’re only talking interpolation here. “Get Free” doesn’t copy any part of the produced sound recording of “Creep.” (like a sample of the actual recording). This means only the music publishers needed to be contacted for licenses.

From a creative point of view, anyone that continues to write and play music throughout their life will, from time to time, subconsciously copy from another song. It’s almost never intentional, it just happens in the moment of exploring new ideas. I've heard it countless times from artists and writers when they are coming up with new ideas: "Oh, it kinda sounds too close to (name that song/artist)." If it really does copy another song, the next options are to change it, scrap it, steal it or license it.

I have personal experience with this kind of copyright and licensing issue on both the music publisher and the artist side. To illustrate, I’ll give you my personal experience from the artist side:

A few years ago I was writing an uptempo instrumental rock song and it dawned on me I had just lifted a riff from a world famous rock band. It was a lesser-known and obscure song, but nonetheless from a world famous rock band. When I realized this, I ran through those aforementioned three tests and it was a big yes on all three.

Given my unique profession and position, I decided not to change it, scrap it or steal it. I decided I was going to conduct some research and attempt to license it. Of course, I totally anticipated being rejected outright because I understand the tough nature these deals.

The license needed in this case is a free market negotiation. The copyright owners of the original song usually have the most leverage. They can say “yes” or “no” and charge whatever they want. Getting a license of this nature is incredibly expensive and time consuming. Luckily for me, the song I lifted only had two publishers and both were administered by the same major music publisher.

To clear these licenses, the new song should be finished exactly how you want it, before asking for a license. The publisher cannot accurately quote and clear the license without hearing what the new song will sound like. In my case, I did a quick recording of my new song and sent it to the publisher for approval. In my request, I also gave important information for the licensing process and proposed a copyright split with the original songwriters/publishers.

The major publisher first quoted me an initial, non-recoupable fee of $2,500. This would be payable if the license was approved, in addition to new copyright splits for future royalties. After a few days, the major publisher replied that the request was rejected and I was to remove the original composition from my new composition.

Why did I get rejected? Probably because they looked at the artist name, “Professor Plumb,” and thought it was joke. They also assumed, correctly, that a small independent artist would not generate enough income to make it worth their time. Most songs controlled by major artists and companies will only approve these licenses if the artist is “a name” and can actually guarantee income. Not so much in my favor, but in Lana Del Rey’s case, these factors were, and still are, in her favor.

Ms. Del Rey says it will go to court now because Radiohead won’t accept anything less than 100% copyright of “Get Free.” The typical default split would be 50/50 between the new and old compositions. I have a feeling that Radiohead’s lawyers are just playing tough negotiation to settle out of court, but I could be wrong.

The ideal scenario is to end up like Sam Smith's "Stay With Me," which borrowed the hook from Tom Petty's "I Won't Back Down." In that case, the parties settled out of court. Smith agreed with the similarities and didn’t want to fight it in court. The result was to add Tom Petty's two writers of “I Won’t Back Down” to Sam Smith's three writers on "Stay With Me." That means the Petty Estate and his co-writer will earn royalties moving forward on both "I Won't Back Down" and "Stay With Me" for the life of copyright.

In this week’s story, “Creep” has seven writers and “Get Free” has three. A copyright settlement would inflate the credits of “Get Free” to a whopping 10 writers and a multiple of other publishers.

That’s likely a bitter pill for the Del Rey camp to swallow, but for the copyright claimants of “Creep,” it’s likely an interpolation use that equals money on top of money.

And now for this week’s other headlines:

Benom Plumb, Assistant Professor of Music Industry Studies at the University of Colorado Denver, reviews the biggest stories of the week affecting music royalties. He is a music industry professional, not an attorney. For more info about Benom, visit his website at www.professorplumbmusic.com.