How Lana Del Rey Could Beat Radiohead in Court

Did she or didn’t she?

On January 7, Lana Del Rey said on Twitter that Radiohead has sued her for copyright infringement because of the similarities between her song “Get Free” (released in 2017) and Radiohead’s “Creep” (released in 1993).

She tweeted, “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.”

At issue are similarities between the chord progressions in both songs (although the lyrical content is not a matter of dispute):

According to attorneys quoted in a Variety article, Radiohead has the upper hand in the argument for two reasons:

  • The songs sound too similar. As Bill Hochberg, an attorney at Greenberg Glusker, said, “I would say this case does cross the line. This Lana Del Rey song is way too close to what is a rather unusual set of chord changes and a very distinctive melody line.”
  • Lana Del Rey’s willingness to offer up to 40 percent of the publishing revenues out of court suggests she recognizes that the songs are too similar. “I don’t think you would offer 40% of your publishing if you believed the claim was frivolous,” said James Sammataro, an attorney at Stroock & Stroock & Lavan.

But anything can happen when music copyright cases are decided by a jury of everyday people, especially when the dispute occurs over something as subjective as the way a song sounds as opposed to the lyrics used. Case in point: Led Zeppelin. Throughout Led Continue reading

Why Ed Sheeran Might Need to Pay up in Copyright Infringement Lawsuits

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Ed Sheeran is having a tough summer. In June, the writers of Matt Cardle’s single “Amazing” slapped Sheeran with a $20 million copyright infringement lawsuit, claiming that Sheeran’s 2014 song “Photograph,” from his album X, copied “note-for-note” Cardle’s “Amazing,” written in 2009. On August 10, Sheeran was hit with another copyright infringement lawsuit, this time by the heirs of Ed Townsend, who composed and co-wrote the lyrics for Marvin Gaye’s classic song “Let’s Get It On” in 1973. The latest lawsuit claims that Sheeran’s song “Thinking Out Loud” (Sheeran’s first Number One single, also from from X) possesses melodic, harmonic, and rhythmic elements that are “substantially and/or strikingly similar” to “Let’s Get It On.” It’s anyone’s guess as to how these lawsuits are settled, but an unfavorable verdict against Sheeran could have ramifications on songwriters everywhere.

In both cases, Sheeran is being sued because, in essence, the musical structure of his songs is too similar to someone else’s. For instance, the “Photograph” lawsuit alleges “The chorus sections of Amazing and the infringing Photograph share 39 identical notes – meaning the notes are identical in pitch, rhythmic duration, and placement in the measure.”

These types of cases, which come down to musical, as opposed to lyrical, similarities, seem to be up for grabs. In 2015, attorney Richard Busch, who is representing the writers of Matt Cardle’s “Amazing,” successfully sued Robin Thicke and Pharrell Williams in a copyright infringement case that claimed Thicke’s and Williams’s song “Blurred Lines” was too similar in musical structure to Marvin Gaye’s “Got to Give It Up.” A judge awarded Marvin Gaye’s family $5.3 million and a share of future royalties. On the other hand, in June, Led Zeppelin successfully defended itself in a copyright infringement lawsuit that claimed the opening chords to Zeppelin’s “Stairway to Heaven” plagiarized guitar chords in Spirit’s song “Taurus.”

Why did Led Zeppelin emerge victorious over musical infringement but Robin Thicke and Pharrell Williams did not? The answer will determine whether Sheeran is liable for millions of dollars in damages. And, as I blogged recently, the matter is a murky one. These factors will likely decide the outcome:

  • How integral is the music to the entire song? This issue will likely determine whether Sheeran wins or loses. Thicke and Williams were successfully sued because the recurring backbeat and chorus that form the structure of “Blurred Lines” was too similar to that of “Got to Give It Up.” On the other hand, although the opening chord progression of “Stairway to Heaven” is similar to a guitar part in “Taurus,” the resemblance lasts but a few seconds. Thicke and Williams might have emerged victorious had a jury believed the same was true with “Blurred Lines” and “Got to Give It Up.” In Sheeran’s case, the lawsuits are basically arguing that Sheeran stole the foundation upon which he built his songs, as opposed to nicking just a few elements here and there. Based on the outcome of the “Blurred Lines” lawsuit, Sheeran is definitely in a tough position with both his lawsuits. He may very well need pay up.
  • How original is the music in question? Team Led Zeppelin argued that the songs “Taurus” and “Stairway to Heaven” were based on common chord progressions that date back to the 17th Century and can be heard in songs such as the Beatles’ “Michelle.” In other words, the musicians were adapting music that is in the public domain, and any similarity to other songs was entirely coincidental. On the other hand, in the 1970s, George Harrison was successfully sued for copyright infringement because his song “My Sweet Lord” was too similar to a very distinctive, original melody in the Chiffons song “He’s So Fine.” Team Sheeran may find themselves needing to prove that the songs in question are not entirely original — an argument that comes down to successful homework and producing musicologists who sound convincing enough. But this point can be difficult for a defendant to successfully argue. With “Taurus” and “Stairway to Heaven,” a jury determined that despite Team Led Zeppelin’s arguments, “Taurus” was original enough to justify Spirit owning its copyright.

In any event, songwriters have been put on notice: attorneys are watching your every move. What you determine to be creative inspiration could land you in court. And you might not possess Led Zeppelin’s deep pockets to defend yourself. The band paid $800,000 in legal fees in the “Stairway” case. Your creative reputation could come down a judge, a jury with zero musical knowledge, and a whole lot of money.

The “Stairway to Heaven” Lawsuit: How Permanent a Victory?

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Led Zeppelin’s successful defense of “Stairway to Heaven” against an accusation of copyright infringement over the song “Taurus” is a victory for creativity — but how permanent a victory?

The opening notes of “Stairway to Heaven” share, at best, a passing similarity to a brief chord progression in “Taurus,” written by singer Randy Wolfe, who performed with the band Spirit. (Compare “Taurus” at the 45 second mark to the opening riff of “Stairway to Heaven.”)

Had a jury found that Zeppelin plagiarized “Taurus,” songwriters would have another good reason reason to second-guess themselves as they create new music (and I’m not referring to lyric writing). The next David Bowie might not write the next “Starman” for fear of sounding too much like someone else’s work (in fact, Bowie based the chorus for “Starman” on “Somewhere over the Rainbow”). But the victory was by no means a slam dunk. Over the years, a number of other high-profile plagiarism cases similar to this one have gone against defendants. For instance:

  • In 2015, the family of Marvin Gaye successfully sued Robin Thicke and Pharrell Williams for infringing upon Gaye’s “Got to Give It Up” when Thicke and Williams wrote “Blurred Lines.” Gaye’s family was awarded $7.4 million (a judge reduced the award to $5.3 million; Thicke and Williams are appealing).
  • Albert Hammond and Mike Hazlewood of the Hollies successfully sued Radiohead over similarities between Radiohead’s “Creep” and the Hollies’ “The Air That I Breathe.” As a result, Hammond and Hazlewood now share royalties and songwriting credits for “Creep.”
  • In the 1980s, Huey Lewis sued Ray Parker Jr. for plagiarism because Lewis felt that the melody for Parker’s 1984 hit “Ghostbusters” was too similar to Lewis’s “I Want a New Drug.” The two parties settled out of court.
  • In 1976, a judge determined that George Harrison had committed “subconscious plagiarism” in writing his 1970 hit “My Sweet Lord,” whose melody is similar to that of the 1962 song “He’s So Fine” by the Chiffons. Harrison was liable for nearly $600,000.
  • In the 1960s, the Kinks successfully sued the Doors over similarities between the sound of the Kinks’ “All Day and All of the Night” and the Doors’ “Hello, I Love You.” Consequently, the Kinks and Doors share songwriting credit for “Hello, I Love You” in the United Kingdom.

Why did Led Zeppelin prevail with “Stairway” when other musicians in similar situations did not? I don’t think anyone knows for sure, which speaks to the subjective nature of these cases. From what I can tell, the following two factors seem to influence the outcome of these cases:

  • How distinctive is the music in question? This issue doomed “My Sweet Lord.” The melody for “He’s So Fine,” while forming only a small part of the song, is so distinctive that even casual listeners could recognize its similarity to “My Sweet Lord.” And the judge decided that being distinctive means being original.
  • How integral is the music to the entire song? In the case of the Hollies suing Radiohead, at issue was the overall similarity between the two songs’ compositions as opposed to a single melody that acted as a smoking gun, if you will. The same holds true for “Blurred Lines” and “Got to Give It Up.” The recurring backbeat and chorus that underpin both songs were deemed to be too similar.

On the other hand, copyright infringement cases due not need to prove that the defendant knowingly stole the music to find the defendant liable, as the George Harrison “unconscious plagiarism” ruling shows.

Of course, all kinds of intangibles can come into play. For instance, did the appearance of the surviving members of Led Zeppelin the courtroom wow the defendants with a bit of celebrity firepower? Robert Plant in particular was said to be especially charming and engaging as a witness.

In the case of “Stairway,” the jury ruled that “Taurus” and “Stairway to Heaven” are not similar enough to justify the plaintiff’s argument that Led Zeppelin was guilty of plagiarism. I don’t know what was going through the minds of the juries — but I suspect the two issues of how distinctive and integral the music informed their decision. To wit:

  • The disputed portion of “Stairway to Heaven,” while sounding similar to “Taurus,” consists of only a few fleeting seconds — so the passage was not integral to the overall feel of the seven-minute plus “Stairway.”
  • Both the plaintiff and the defendant produced musicologists who argued about the distinctive nature of the disputed music. Team Led Zeppelin argued that the musical progressions date back to the 1600s, thus attacking how distinctive the riff in “Taurus” and “Stairway” really are. Team Spirit produced technical evidence arguing that “Taurus” uses a distinctive structure.

Ultimately, the arguments of Team Spirit around those two issues did not convince the jury.

In the context of the “Stairway” lawsuit, it will be interesting to see how the copyright infringement lawsuit against Ed Sheeran’s song “Photograph” plays out, as well as one against Justin Bieber for his song “Sorry.” Sheeran has been sued for $20 million by songwriters Martin Harrington and Tom Leonard. Harrington and Leonard claim “Photograph” has a “striking similarity” to the song “Amazing” which they wrote for a onetime winner of The X Factor, Matt Cardle.

Harrington and Leonard assert that the chorus of Sheeran’s “Photograph” and Cardle’s “Amazing” share 39 identical notes, and that the two songs utilize similar overall structures, melodic rhythms, and harmonies.

Given the murky history of song plagiarism lawsuits and subjective nature of their outcomes, the long-term impact of Led Zeppelin’s successful defense remains to be seen. Meanwhile, songwriters would do well to heed the advice of producer and blogger Bobby Owsinski:

“[S]ongwriters beware, there’s nothing new under the sun given the 12 note scale that western musicians use, so you’re probably copying a previous song without even knowing it. And today, that’s enough to get you sued.”

Related:

Consequences of Sound, “10 Famous Cases of Musical Plagiarism,” by Matt Melis and Michael Roffman, May 29, 2016.

The Daily Beast, “If Led Zeppelin Goes Down, We All Burn,” by Aram Sinnreich, June 17, 2016.

The New Yorker, “The Unoriginal Originality of Led Zeppelin,” by Alex Ross, April 14, 2016.

Time, “11 Suspiciously Sound-Alike Songs,” by Melissa Locker, August 21, 2013.

WatchMojo.com, “The Top 10 Rip-off Songs,” May 17, 2014.