Music Copyright Laws: The Song Remains The Same

Year Published: 2018

In light of recent highly publicised legal battles, many people’s heads were already swimming with the legalities and complexities of songwriting disputes as reported by the mass media.

Pharrell Williams and Robin Thicke lost their case against the estate of Marvin Gaye over the writing of “Blurred Lines”, Ed Sheeran settled a dispute over the ownership of the song “Photograph”, and Jimmy Page and Robert Plant of Led Zeppelin defended the claim against them brought by the estate of Randy California over their ownership of “Stairway to Heaven”.

And now here come Radiohead apparently suing Lana Del Ray who has tweeted to say that her song “Get Free” is claimed by Radiohead’s lawyers to be“100%” theirs on the basis that it is a copy of their song “Creep”.

Just to amuse us even further, it seems Radiohead had previously settled with Albert Hammond and Mike Hazelwood in respect of “Creep’s” similarity to their song “The Air That I Breathe” made famous by The Hollies. Messrs Hammond and Hazelwood now allegedly receive 40% of the song writing royalties generated by “Creep”.

Although since Lana Del Ray’s tweet, Radiohead’s publishers have since said that they are not claiming 100%.

“Confusing” doesn’t quite do it justice, does it?

But one thing is always clear, to the ear at least. When these disputes arise, the inevitable YouTube videos showing a comparison reveals that the songs or tunes do indeed sound very similar.

How do the songs compare?

Here is the comparison of “Creep” with “Get Free”

The chord progression is the same to the ear. So it must be a clear cut case for Radiohead? Right?

But here is “Stairway to Heaven” and “Taurus” by Spirit and written by Randy California.

They are the same or very similar, aren’t they? But Led Zeppelin were successful in their defence in the Californian Court.

Here is “Blurred Lines” by Robin Thicke and “Got to Give it Up“ by Marvin Gaye.

Thicke and Williams failed to convince a Jury in California that “Blurred Lines” was their original copyright work. Pharrell Williams was very honest when he told the Court that Gaye’s song was the inspiration for the song he wrote with Thicke. And the musicologists reports confirmed that “Blurred Lines” was not a copy from a musical point of view.

There was significant outrage at the Jury’s decision and many famous musicians have made their voices heard regarding the potentially detrimental effect the result would have on musical creativity, which (in an art form based on 12 notes) relies heavily on re-interpreting and remodelling past works. Just ask Chuck Berry. Every artist ever interviewed by the media is asked the pro forma question “Who are your influences”?

Lana Del Ray’s tweet went on to say she had offered Radiohead a 40% cut of the royalties for  “Get Free”, but that they refused that offer, so she has decided to let a Court settle it.

So what is going on and what do the courts say on music copyright laws?

First of all these claims were made (or are being made) in the USA.

Copyright law there is fundamentally the same as in the UK. It is unlawful to copy someone’s original copyright work. A song is a copyright work comprising music and lyrics, usually with an overriding melody, and their arrangement. If found to have acted unlawfully by copying an existing song in a “new” song, the copyright  infringer can expect to suffer significant damages,  professional shame for “ripping off” a fellow artist, and a rather large legal bill. Not to mention that they could lose some or all of a share of what must be a lucrative piece of work (as very few sue for unplayed and unheard works). The amounts involved and at stake in the cases above were eye-wateringly high.

Andy Booth, Music and Media Partner in the Corporate team at SAS Daniels

Andy Booth, Partner & Head of Music & Media

Marvin Gaye’s family’s landmark victory was in a Californian court and was decided by a Jury. The inference drawn from the outcome has been that they decided the case based on emotion rather than the expert evidence.

Williams and Thicke would probably have won the case in the UK, where a Judge would have made the decision based on expert evidence. The expert evidence was clear – there were no musical similarities between the songs – other than a general feel or groove and cowbell sound – neither of which are protected under copyright law.

Most cases of this nature in the UK and the USA are settled out of court. A threat of a claim arises – often a lawyer’s letter is issued (preferably with expert evidence attached to support the case) – and negotiations usually ensue (which may or may not include complete or partial capitulation by the infringer).

Often the negotiation is really between the experts who would give their evidence in Court. An appearance in Court for everyone would only arise if an agreement cannot be reached. In the UK the final determination of the case would not be decided by a Jury.

How do you know if you have a copyright claim?  

There are not many acknowledged expert Musicologists in the UK and they are busy people. Lawyers like to get to the best one first, before their opponent does.

Musicologists spend a lot of time throwing water over the (often considerable) fire of wrongful claims. The last time I sent work to the Musicologist I used a comparison of two separate recordings of different songs (one written by a client of mine who had asked me to investigate whether or not they had a claim), his advice in its entirety was to call and play a third song down the phone to me. “You don’t want your clients track to be put against that in Court, do you?” were his parting words. He was right. It was by The Beatles.

But the point was – the track we thought may have been copied was very similar to another very well known song, so we would struggle to claim the fundamental foundation of a copyright claim, originality– my client’s track was probably not original in the first place. And originality is the crux of the whole thing. And originality is harder to prove than you might think. Just because songs sound similar, doesn’t mean an infringement has taken place. It’s much more complicated than relying on our ears. Is everyone suing everyone else in respect of the Axis of Awesome clip?

The famous descending guitar arpeggio we all recognise as the intro to “Stairway to Heaven”, may well have a similarity to “Taurus” by Spirit, but the origins of that descending progression in A minor could be traced back through musical history to medieval Lute music. The copyright issue therefore was that it could not be original in the hands of Spirit, so Led Zeppelin could not be guilty of infringing an original copyright work of Spirit, even if “Taurus” was released before “Stairway to Heaven”.

When George Harrison was sued for his song “My Sweet Lord” and its similarity to “He’s So Fine” by the Chiffons, the US Judge found he had “unintentionally” copied the Chiffons song. This induced a writer’s block in the ex-Beatle, fearing he could unintentionally re-write other people’s songs for the rest of his life. Harrison resolved the whole thing some years later by buying the publishing rights to “He’s So Fine”. A neat conclusion.

What’s the conclusion for these copyright cases?

Robin Thicke and Pharrell Williams are appealing the judgement against them.

Messrs Plant and Page were very relieved…but now face an appeal by their opponents.

“Radiohead versus Del Ray” may already have been publicised to the fullest extent it is going to be, because confidential settlement is nearly always the sane route for everybody.

But whatever happens in that case, it won’t be the end of it.

And if you are genuinely concerned someone has copied your original song, I know a great Musicologist.

For more information on music copyright laws, please contact our Music & Media specialist Andy Booth on 0161 475 7646.

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