Where there’s a hit, there’s a writ: navigating copyright law in contemporary music
Where there’s a hit, there’s a writ.
It’s a well-worn adage in the music business – and one that rings true. The Robin Thicke and Pharrell Williams hit ‘Blurred Lines’ is a perfect example.
The biggest song of 2013 was found to have infringed the copyright of the 1977 Marvin Gaye song ‘Got To Give it Up’. That decision was – quite rightly – criticised for being wrongly decided based on evoking the “vibe” of the earlier song, despite being in a major key (rather than the blues scale) and melodically quite different. It remains to be seen if that decision will be appealed.
There’s a big difference between being inspired by an earlier work and directly copying the earlier work. Creativity does not exist in a vacuum, after all. Just ask Ed Sheeran.
Popular music is littered with countless claims of copyright infringement, from Cat Stevens v The Flaming Lips, George Harrison’s ‘My Sweet Lord’, Led Zeppelin v Willy Dixon to Joe Satriani v Coldplay.
So, how do songwriters fall into these types of situations and how are they dealt with?
Under Australian copyright law, which aligns with most other countries, a song may infringe another song if the part “taken” is decided by a court to be an important, essential or distinctive part of the first song – think the two notes of the Jaws theme or the three notes of the main riff in ‘(I Can’t Get No) Satisfaction’ – without the permission of the songwriter or their music publisher. Remember when Men at Work went up against a favourite Aussie nursery rhyme and lost, for their use of that distinctive flute riff in ‘Down Under’?
For infringement to have occurred, the distinctive part used needs to be memorable and is referred to as a “substantial part” of the song – this is not based on duration or a percentage used of the original song.
For example, Lana Del Rey sued by Radiohead for allegedly copying ‘Creep’. Del Rey claimed in a tweet (since removed) that she was being sued for infringing Radiohead’s hit with her song ‘Get Free’ and the Creep writers wanted 100% ownership of her composition.
You can compare for yourself below.
Radiohead’s publisher Warner/Chappell subsequently confirmed there were ongoing negotiations around Del Rey’s use of musical elements from ‘Creep’ in her song/recording but denied the existence of a lawsuit being filed by “all writers”.
“All writers” means the Radiohead writers and songwriters Mike Hazlewood and Albert Hammond. Those writers and their respective publishers settled their own claim for copyright infringement by the writers of the 1974 song ‘The Air That I Breathe’. The liner notes of Radiohead’s Pablo Honey now credit* Hammond and Hazlewood as co-writers of ‘Creep’, and Hazlewood and Hammond share in publishing royalties with the Radiohead writers (*I did not have a copy of the album to verify this statement).
Given the obvious similarities between the Del Rey and Radiohead song, it’s likely a settlement will be reached (if it hasn’t already) between the interested music publishers, and all writers of ‘Creep’ will be added to the ‘Get Free’ writing credits, with entitlements to publishing royalties.
Sensibly, the standard of what makes a song “original” under copyright law is low, making it possible for countless songs in a genre – such as pop, country or blues – to comprise largely of the same harmonic and/or melodic structures, and to each be an original song in its own right, capable of copyright protection and the source of ongoing income for songwriters and music publishers.
‘Creep’ is a four chord song, and the permutations of songs based on a similar structure are endless. Have a look at this skit to see how easy it is.
More problematic are copyright claims where songwriters are found to have “copied the vibe” of the original song, as in the case of the ‘Blurred Lines’ / ‘Got To Give it Up’ decision. While ‘Blurred Lines’ paid homage to the recording of the Marvin Gaye classic by incorporating similar background party and cowbell sounds, specific original elements of the Gaye composition itself were not reproduced in the latter composition.
A recent claim which also falls into this basket is one by the writers of ‘Love Is In The Air’ against the electronic duo Glass Candy for the 2011 song ‘Warm In The Winter’. In my view, this claim is an ambitious one (known as an ‘ambit claim’) and neither the use of the phrase “Love is in the Air”, nor the music supporting that phrase, is a substantial reproduction of the John Paul Young classic. Watch this space.
And if you need any more inspiration on writing a hit (without a writ), then check out The Manual (How to Have a Number One the Easy Way by The Timelords (aka The KLF).
Andrew Fuller is an entertainment lawyer based in Melbourne.