Week ending January 12th: Avoiding Copyright Infringment: What Lana Should Have Done
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 similarity 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:
- Are the songs substantially similar?
- Did the defendant have access to the song allegedly infringed?
- 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: [READ MORE]
And now for this week’s other headlines:
- Recording Academy, RIAA, ASCAP and BMI Unite to Give Full-Throated Endorsement of Licensing Reforms (Billboard)
- Round Hill Buys Carlin In Historic Nine-Figure Deal (Music Business Worldwide)
- Facebook Inks Licensing Deals With Kobalt, HFA and GMR (Music Business Worldwide)
Week ending January 19th: Round Hill’s $263M Tips Music Royalties as 2018s Hottest Investment