This week, Lana Del Rey stated that she is being sued for copying Radiohead’s 1992 song Creep in her 2017 release, 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.
Both songs use the same chord sequence: | I | I | | III | III | | IV | IV | iv | iv |
Creep is in G major, so | G | G | B | B | C | C | Cm | Cm |
Get Free is in Bb major, so | Bb | Bb | D | D | Eb | Eb | Ebm | Ebm |
They are both mid-tempo (Creep is around 92 BPM; Get Free is around 102BPM).
They both have a similar rhythmic feel – straight 8s 4/4 time, in 8-bar sections (this is a similarity but an unremarkable one, given that it applies to a huge number of songs).
…and some history…
Creep is part-borrowed from Albert Hammond’s The Air That I Breathe (1972) – later a hit for The Hollies. According to The Guardian, Radiohead gave Hammond and his co-writer Mike Hazlewood a credit in the Pablo Honey album liner notes.
Here are the three songs in reverse order of release:
Here is the abstract, with references, for the academic paper I presented at the IASPM 2017 conference in Kassel, Germany. At the moment it’s just abstract, slides and references. If it ever turns into a full paper I’ll upload it to this website with the rest.
Abstract: The songwriter Stephen Schwartz once described his ‘Unlimited Theme’ (from ‘Wicked’) as a musical joke, using as it does the first seven pitches from ‘Over The Rainbow’.Schwartz believed that by limiting the number of copied pitches, he was evading an accusation of plagiarism. Schwartz’s belief in a legally defined plagiarism threshold represents a common misconception among musicians; there is a similarly widespread myth that copyright law permits a specific number of seconds of audio sampling (this has explicitly been contradicted in US case law). But borrowing and adaptation is a common form of creativity, and there is a real risk that if creators misidentify the line between influence and plagiarism, they might either inhibit their own creative freedoms, or inadvertently infringe copyright. This paper discusses the mythical plagiarism threshold, using examples from copyright case law, interviews with creators, and comparative analysis of musically similar works to explore the question “how much is too much”?
Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004)’. Harvard Law Review 118 (4): 1355–62. doi:10.2307/4093384.
Cronin, Charles Patrick Desmond. 2017. ‘Seeing Is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes’. Social Science Research Network. https://papers.ssrn.com/abstract=2967590.
Demers, Joanna. 2006. Steal This Music – How Intellectual Property Law Affects Musical Creativity. Athens : University of Georgia Press,.
Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
Friends, musicians and soundmen (and women) – lend me your ears. Here are some Wayfair TV commercials in a playlist – let me know (Twitter @joebennettmusic) what songs you think they’re using as a template for the music. Disclosure – this is for academic research, not copyright/client work.
[Health warning – these ads have a level of cheesy catchiness that may be difficult to cure once acquired.]
I Hate These Blurred Lines: Wrongful Appropriation and Copyrightability in Music Copyright
Academic/copyright post: here’s an abstract (pdf) of a paper that I’ll be presenting with Prof Wendy Gordon next week at Boston University Law School.
This is based in part on an earlier paper that we presented at the Art of Record Production Conference in Aalborg, Denmark in December 2016, a draft of which is embedded below with voiceover and music examples. As this is an academic paper about music copyright, it contains musical excerpts from the original audio recording. My first attempt to embed the video resulted in an automatic takedown (academic fair use YouTube dispute is in progress), so I’m trying again with a Screencast embed. Because the video represents commentary and (not for profit) academic research, I’m continuing to claim fair use. Let’s see how long the audio survives!
Abstract: We have two concerns with music infringement trials: The first concern is the process by which juries decide questions of whether a defendant copied too much from a plaintiff’s work. (This is the inquiry sometimes known as “wrongful appropriation” or “substantial similarity”.) This paper discusses the challenges of methodology in forensic musicology, and the musical and psychological difficulties of applying the ‘substantial similarity’ test fairly and objectively. (Bonadio, 2016; Gordon, 2015). We present an analysis of three disputes, with comparative audio examples – The Isley Brothers/Michael Bolton (2001); Robin Thicke & Pharrell Williams/Marvin Gaye (2015); and Randy California/Led Zeppelin (2016).
Our second concern addresses copyright classifications, in particular, the contested relationship between the creative decisions that give rise to copyrights in “musical works” (compositions) and the creative decisions that give rise to “sound recordings” (sounds as rendered). We suggest that overlap between the two is common and should be better recognized. To illustrate the potential compositional contributions of performers and sound engineers, we utilize audio examples from Newton v. Diamond and other disputes.
As mentioned in a previous post, the question of whether Led Zeppelin’s Stairway To Heaven (1971) copies a part of Spirit’s Taurus (1968) may soon be settled.
Representatives of the late Randy Wolfe (aka Randy California) are claiming that the four-bar introduction section of Stairway To Heaven copies a substantial part of his 1968 instrumental composition Taurus.
Judge Gary Klausner stated that a jury should be used, because the matter in question is necessarily subjective: “while it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure […] What remains is a subjective assessment of the ‘concept and feel’ of two works”.
So let’s compare the works – how similar are they?
In the next couple of days I’ll post proper transcriptions of the two with audio and some discussion points. For now, here’s an interview I did yesterday with BBC Radio 5 live, discussing the songs with presenters Sarah Brett and Ore Oduba.
I was interviewed recently for the Danish broadsheet newspaper Weekendavisen, which ran a feature on musical plagiarism, referencing Robin Thicke’s Blurred Lines. The text below is a (partly Google-powered) translation from Danish. For any native Danish speakers reading this, the original will probably make more sense – download here: Weekendavisen article 24 October 2014.
Slørede grænser (Blurred Boundaries)
[translated from Danish. Written by Anders Boas. Reproduced in translation by kind permission of Weekendavisen.]
The same way that a house is made of bricks, wood and nails, a piece of music is build of pitches, harmonies and rhythms. But the same way that very few people see each brick in a house, it is a minority that hear the individual notes when listening to the latest hit.
I appeared on Voice Of Russia radio this week (the Brendan Cole show), talking about the Stairway to Heaven/Taurus allegations of plagiarism. It was a long and wide-ranging panel discussion, also covering Oasis, Deep Purple, Coldplay, Gershwin and others. The panelists were:
Joe Bennett, dean of the School of Music and the Performing Arts at Bath Spa University and head of the annual UK Songwriting Festival.
Below are some quotations from the full 30-minute discussion. The podcast can be downloaded here (28MB) or press play below to hear it in your browser.
JB: “The whole issue basically hinges around a four-bar piece of music played using a descending minor chord pattern…
“Yes, I believe he [Jimmy Page] copied it. […] It’s a riff he had access to, it’s a riff he heard recently and it’s not the kind of thing that would be terribly similar through coincidence. The issue is whether the thing being copied was in fact owned by Randy California in the first place. Can you copyright a minor descending chromatically in half bars?”
AM: “Actually, I’m not sure that I completely agree with the way Joe has characterised the question here because I think it’s pretty clear that any musical work, any literal work which it’s a fairly low threshold of originality does belong as a matter of copyright to whoever created it. If it is entirely commonplace and standard and gone before then there’s nothing knew and original. But once you hit that low threshold you’re the copyright owner in that work…
“And then the two questions become – one is, was there as a matter of fact copying? From what we know of the evidence in this case is suggestive of the fact that there could have been copying or maybe subconscious copying – a concept that was recognised in the George Harrison ‘My Sweet Lord’ case where it was found that Harrison didn’t know that he was copying but nonetheless he was subconsciously…
“So let’s assume that Randy California gets them on that, and then the question is – is it a substantial copy? And that’s the legal test – is there a substantial reproduction here? And then you start getting into quality questions about what has been taken, what has been saved and what’s been reproduced.
“This is actually a very difficult question… I think the original could well be owned by Randy California notwithstanding that is a descending minor chord pattern because it’s the particular minor chord pattern in which his copyright subsists. Has that substantially been taken by somebody else?”
CF: “With the Led Zeppelin example, to me it sounds way too similar to be regarded as just gaining inspiration. The Randy California version actually sounds like a Led Zeppelin song played wrong and I know it’s Jimmy Page that’s supposed to have copied it – I think the line should be drawn where getting inspiration is a theme or a feeling, but when you actually take the riff of the song I think that should be regarded as plagiarism.”
JS: “The only people that have really been open about it [plagiarism] is someone like Noel Gallagher – he’s always been like ‘oh I like that’, ‘I love that’… And he got nailed for it for a song which was left off their second album, which was very similar to ‘Uptight’ by Stevie Wonder. It was originally included on ‘What’s The Story Morning Glory’ and had to be taken out…”
“…There are not a lot of musicians who do it. It’s incredibly common for musicians to be accused it [plagiarism].
“You look at any Amazon review of an album and someone will say – ‘I can’t believe that they get away with this track, it must be obvious to anyone with ears that this is a complete rip-off!’ Everyone thinks they hear echoes of another track… And a lot of the time musicians hear that.”
“A few years ago Joe Satriani – the rock guitarist, had sued Coldplay because he claimed that they had taken a little snippet of melody from one of his endless self-indulgent guitar noodles. You listen to it and really it was like ‘mate, you’re dreaming.’
“This is a man who like a lot of musicians has a very large ego and believes he doesn’t get the credit he deserves. He sees a band like Coldplay who get a certain amount of critical acclaim, although not everywhere, But Satriani obviously looked at that and thought – ‘I see my influence everywhere, they’re all ripping me off!’ It’s amore in his head that reality.”
“In regards to Led Zeppelin doing this – if hadn’t been Jimmy Page I might have been prepared to say – well yeah, it’s just a minor chord pattern. It’s not an uncommon pattern of chords – the descending pattern of chords, and even the fingerpicking – the sort of 1-2-3-4 is hardly uncommon in the folk tradition. The fact is, Jimmy Page has form – a lot of form, when it comes appropriating other people’s work. Now whether that would count in the court of law is highly debatable, no doubt.”
JB: “Well coincidences can take place and in the case of the Joe Satriani track I think that idea starting on a minor ninth chord with the melody and then over the C chord – that was the melodic fragment he was picking up on. My personal view is that it is not beyond the realm of coincidence that two composers separately could come up with what is a relatively simple harmonic and melodic idea over two phrases.
“The challenge with this kind of issue, and particularly the Randy California issue, is that everybody hears music subjectively.”
“When a listener hears a piece of music they’re listening to quite a lot of information going into their brain, not just the thing musicologists write about typically – melody, harmonic context, i.e. the underlying chords and that which could be notated, but they’re also hearing the production, they’re hearing the instrumentation.
“So for example, had I played you the Randy California track using a brass band arrangement, it would be technically the same composition and the same piece of intellectual property in terms of music publishing, but it would sound completely different because it would be played by a brass band.. So, the reason that a lot of people hear similarities can be influenced by something as simple as instrumentation, and because I’m sitting here with an acoustic guitar and have played both examples on the same acoustic guitar back to back, that rather enhances their similarity as composition in terms of listener perception.”
CF: “The Beatles in particular came up with very-very original songs for their time and had a very unique sound. While they might borrow ideas and get influence from rock and roll and other stuff that was around at that time, they definitely put their own stamp on it. I don’t think that you could regard what they did as plagiarising, but it was taking influence and producing original music.”
JB: “A lot of my academic research is investigating the psychology of the creative process – exactly how do people come up with melodies? There’s a lot of romantic mystery attached to it in the mainstream media and of course songwriters maybe have a bit of a vested interest in mythologizing the process in that way.”
“Every creator of music has heard previous music and is creating new material in that context. So when I interview songwriters they tell me that it happens all the time that they accidently, inadvertently or even deliberately compose fragments for their own song that they’ve taken from other songs… But normally that’s avoidance of plagiarism – a normal part of the creative process. You just go – oh that sounds a bit similar, I’ll tweak it until it doesn’t.”
AM: “The issue that we come across again and again is the dichotomy between an idea and the form of expression of an idea… And you see that in all forms of copyright works, it’s not just music.
“But at what point is what has been taken – the inspiration, as against down at a level where it’s the particular way in which that idea is expressed. It’s a real problem for the courts to grapple with any particular case and therefore it’s a real problem for artists and music companies when they’re looking at issues like this…”
“I think the answer ‘I wasn’t aware’ is probably not a defence… A court can find that you were copying and reproducing and that’s the test – were you as a matter of fact copying without intending to, maybe even without realising?
“The answer seems to be yes you can. You’ve got to have pretty compelling evidence to show that that particular track was around so much and you’d heard it so often that it was somewhere there in the back of your mind that you’d be regurgitating it without even realising…”
JS: “When you combine a musical pattern and also a lyric which quite often Led Zeppelin have done then that’s when you haven’t really got too much of an argument. Again it was something that Noel Gallagher has done several times – the song ‘Whatever’ goes ‘I’m free to do whatever I want’ and Neil Innes of the Bonzo Dog Doo-Dah Band said that he [Neil] basically stole that from ‘I’m free to be an idiot’. As far as I know Neil Innes now has a credit on that one, along with the other ones that Noel Gallagher has given credits away to. If Neil Gallagher was going to steal the melody, he might have gotten away with it, but to actually steal the first two words? Then you’re in trouble.”
CF: “Most times when you come up with a song that you actually want to borrow a part of then you approach their publisher and ask permission to do so. I’ve done that before in bands that I’ve been in – we did a cover of Mr Sandman which is obviously a very old classic song. We approached the publishers and they approached the writers and they gave us permission to use it.”
“…We basically did a cover of the entire song but did it in a very different way to the original. The original is all very happy-clappy and we were doing a darker version of it. So we sent them a recording and they wrote back and said – yeah, you’ve got permission to use it… And they would get a percentage of royalties from it.”
AM: “It’s an expensive thing to do as a claimant and it’s an expensive thing to defend as a defendant. And I hate to say it, being a lawyer, but it is one of the areas where typically the people who really succeed are the lawyers and therefore it lends itself to early resolution.”
JB: “It’s all in the ear of the listener isn’t it? It’s dependent on the way people receive it – to some people things will sound very similar, to other people not.”
Lionel Bently (University of Cambridge): De-naturalizing Musical Authorship
Determinations of who counts as an ‘author’ of a musical work has a number of legal consequences. Most obviously, it governs who count as the first owners of copyright, and thus who benefits from revenue streams associated with publishing/ recording (mechanicals) and performance (including broadcasting and streaming). Secondly, it is relevant to the duration of copyright – the term of copyright in music and lyrics being calculated by reference (i.e. currently seventy years after) the death of the author (or in the case of co-authorship the last author to die). Third, being an author entitles a person to be named as such when a work is published or recordings are distributed: authors are granted what is known as the ‘moral right’ of attribution.
Copyright law has tended to assume that the legal concept of authorship maps onto a natural, flesh-and-blood, human beings. It thus is typically taken for granted that identifying who is an author for one purpose (say, ownership) necessarily operates to identify the author for other purposes (term, attribution). In so doing, the dominant arena for determining authorship concerns ownership. Here the rules have developed rather restrictively, so as to exclude from the category of authors a perhaps surprising range of contributions (as seen most clearly in the Spandau Ballet case, Hadley v Kemp). But the effect of such an approach is not just to exclude contributors from counting as owners, but also from being entitled to attribution.
Certainly, one can see the logic in assuming that the word ‘author’ means the same thing in different parts of a statute, and indeed the convenience in so doing. However, if we consider the legal task of ascribing authorship as informed by matters of policy, the assumed unity or integrity of ‘authorship’ in copyright seems problematic. The policy considerations that underpin restricting who counts as an author in the three domains – ownership, term and attribution – are very different. By exploring these policies in more detail, I want to suggest that copyright law could respond more flexibly to a diverse range of creative practices if it recognised that the legal concept of authorship is not ‘natural’. One consequence of so doing might at least to be to afford rights of attribution to a wider array of contributors than are currently accommodated by the moral right of attribution.
Bernd Justin Jütte (University of Luxemboug): The EU’s Trouble with Mashups -‐ From Disabling to Enabling a Digital Art Form
New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User generated content (UGC), a term that already transmits a notion of amateur artists, has produced a plethora of new forms of artistic expression. One type of UGC are mashups, which are compositions that combine existing works (often) protected by copyright, and transform them into new original creations.
The European legislative framework has not yet reacted to the copyright problems provoked by mashups. Whereas the flexible US fair use doctrine has ac-‐ commodated mashups rather easily, the strict corset of limitations and exceptions in Art 5 (2)-‐(3) of the InfoSoc Directive does not leave any, or only very little, room for this innovative and widely popular form of artistic expression for commercial or non-commercial purposes. The paper analyzes the current European legal framework and identifies its insufficiencies with regard to enabling a legal mashup culture. By comparison with the US approach, an attempt is made to suggest solutions for the European legislator, based on the policy proposals of the EU Commission’s “Digital Agenda” and more recent policy documents (e.g. “On Content in the Digital Market”, “Licenses for Europe”). In this context a dis-‐ tinction is made between non-‐commercial mashup artists and the emerging commercial mashup scene.
A Question of Context and Aura. About Copyright Law’s Reaction to Digital Composing with Second Hand Sounds – with Special Regard to Mashup
Particularly due to widely acknowledged, theorized, and studied technological (pc, sam- plers, internet) and aesthetical (postmodernism, retromania) changes, the use of well- established practices of employing a musical reference has grown exponentially across the board from avant-garde music and jazz to all kinds of popular music genres during the last four decades. But has the massive quantitative change mutated in any respect to a qualitative change, too, bringing anything new to the wide and old field of musicalborrowing (Burkholder, 1994; Schneider, 2004) with regard to both the production pro- cedures and/or the reception and evaluation of these kinds of music?
Keith Negus / John Street / Adam Behr: Digitisation and the Politics of Copying in Popular Music Culture Musicians are at the forefront of discussions around revenue loss in the music industry, yet often neglected in existing studies which usually focus on corporate perspectives or audience activities. Drawing on extensive interviews with musicians operating in different genres – and at different points in their careers – within the broad field of popular music this paper presents initial observations from an investigation of how the notion of ‘original’ ideas and rights of access (and hence copyright) are negotiated by practicing musicians. How do they regard duplicating without permission in order to circulate free copies or bootlegs? How do they see the practice of appropriating, reusing, sampling and imitating? How does this relate to the existing legal and policy framework?
Here’s the new Paloma Faith single, ‘Can’t Rely On You’. It has been suggested that it may be similar to Franz Ferdinand’s 2004 single ‘Take Me Out’.
In January this year Alex Kapranos tweeted “Hey @Pharrell – I love your tunes. If you want to borrow a riff, just ask…”
Let’s take a look at the notes.
They look and sound similar – but does this mean that Pharrell has copied Kapranos’s riff? Let’s look at the objective facts.
Take Me Out is seven note events (G E E D B D E). These appear on the 3rd, 5th, 7th, 8th, 9th, 11th and 13th semiquavers of the bar of 4/4.
Can’t Rely On You uses all of the same pitches and all but one of the rhythmic placements (the second ‘D’ is played one semiquaver earlier).
Can’t Rely On You adds three extra notes (E, E and D, on the 11th, 15th and 16th semiquavers of the bar).
Both riffs occur in the same harmonic context – that is, over the home minor key ‘i’ chord.
They are both simple minor pentatonic riffs, so anyone composing this ‘type’ of riff would be using the same 5-note palette from which to choose pitches.
But the similarity is certainly striking. Can’t Rely On You copies some very specific and arguably (in combination) unusual characteristics of the ‘Take Me Out’ riff, including starting on beat 2 on the minor third, identical pitches for the first seven notes, a distinctive rhythmic pattern (a rest, 2 quavers, 2 semiquavers, after which there is a slight rhythmic deviation). And ‘Take Me Out’ is a very well-known song so it is extremely unlikely that Pharrell/Faith did not recognise the similarity.
So is it possible that two composers could have made the same note choices independently of each other?
An independent research study in (Frieler and Riedemann, 2011) suggested that independent creation in popular music is possible, and found under experimental conditions an example of two arguably similar melodies. I was unconvinced by their conclusions – the full research paper notated the melodies that were composed by the study’s participants, and there were similarities but also a number of differences, which would have served to make the melodies appear noticeably dissimilar – more dissimilar than most examples found in US and UK melodic plagiarism case law. Certainly their study did not show any similarities of the specificity that appears in the Pharrell/Kapranos example.
This is a difficult one to argue either way, because the riff is so short and because there are slight dissimilarities. My view is that copying has taken place – there are just too many coincidences (literally – that is, notes that coincide). Kapranos has decided to let it lie anyway. It might be possible to put this one down to cryptomnesia.
The case has now been resolved, and the jury found in the Gayes’ favour, despite the copying not being exact and the musical elements dissimilar, as my original February 2014 post (below) argues. In an interview with the Hollywood Reporter, Richard Busch, the Gaye family lawyer, describes how the Thicke side’s hubris and inconsistency contributed to the jury verdict going against them – but insists that the case was successful because of the characteristics of the music itself. For those who have said that this sets a dangerous precedent for creators (including me – see this MTV news interview), this may be so in terms of discouraging musical homage in arrangements. But in (US) legal terms, a jury ruling is different from a court ruling, so each case is judged on its merits and on the specific evidence presented. Therefore this settlement does not represent ‘case law’ (as attorney Brian D Caplan points out in the same MTV feature) but it has certainly made some creators rather uncertain about their future songwriting and producing practices… [JB]
This article originally appeared in Total Guitar magazine issue 229. Reproduced by permission. Words: Joe Bennett. Illustration: Andy Watt. Click the image to download a pdf.
It’s a common feeling. You write a line and it immediately sounds just right. Timeless. Familiar. Almost… too familiar. You play the finished song to your mates and someone notices – you’ve copied someone else’s track. Gutted, you delete that great-sounding line and spend hours trying to write something that sounds as good.
This sort of accidental copying happens to every songwriter from time to time. Most of us just exhale sadly and hope wait for inspiration to flow again, following the tracks of our tears. But some take the darker path, keeping the copied section and hoping that no-one will notice. Leading us to the inevitable question: how much of someone else’s song can actually be copied?
The answer, frustratingly, is ‘none at all’. Contrary to popular myth, there is no maximum number of notes you can copy ‘legally’. If your song sounds recognisably like part of another song, and the other side can demonstrate in court that copying has occurred, you could end up owing someone a lot of money, or even lose ownership of your own work.
Here’s a fun bit of arguable plagiarism from Sting.
Every Breath I Take (Gene Pitney) – excerpt from [0:58]
Only with every little breath I take
Only with every little step I make
Only with every little beat of my heart
And every single minute I’m awake
Here’s the Gene Pitney original from 1961, which was written by Gerry Goffin and Carole King and produced by Phil Spector, charting at #42 in the UK. Listen from [0:58].
The Beatles – You Never Give Me Your Money
Erasure – I Love To Hate You
Frank Sinatra (and others) – Fly Me To The Moon
Gloria Gaynor – I Will Survive
Train – 50 Way To Say Goodbye
Cat Stevens – Wild World
Here’s a rather close to the wire song that, to my ears, owes rather too much to the verse of ‘Don’t Worry Be Happy’. Compare Emily J’s vocal in the advert [0:00] with Bobby McFerrin’s [0:28] first melodic phrase. And note the identical harmony in bars 1-4 of the verses.