From EMI’s Kookaburra Sits on the Old Gum Tree vs Men at Work’s Down Under to Marvin Gay’s Got to Give it Up vs Robin Thicke’s Blurred Lines, Lana Del Rey and Radiohead may be adding their names to the list of music copyright disputes. Del Rey tweeted that Radiohead is suing her because of the similarities between her new song, ‘Get Free’ and Radiohead’s 1992 hit song, ‘Creep’. Although this case has not hit the courtroom, it provokes an interesting discussion around infringement of musical works and why more cases don’t hit the headlines.

Music Copyright

Musical works, like literary works, are protected by the Copyright Act 1968 which gives the owner the exclusive rights to:

  • reproduce the work in a material form;
  • publish the work;
  • perform the work in public;
  • communicate the work to the public; and
  • make an adaptation of the work.

Del Rey’s Potential Dispute

The claims made by Radiohead relate to the chord progression. In particular, the last chord in the progression, known in the music industry as modal interchange, being that it doesn’t technically fit the musical key, is arguably identical in both songs.

If the matter did go to court, Radiohead would need to prove the following factors:

  • that they are the rightful copyright owner;
  • that the copied material is a substantial part of Creep; and
  • that Del Rey copied the relevant part of Creep (often shown by circumstantial evidence of proof of access to the material).

Factors to Show Music Copyright Infringement

Ownership

Although ownership may seem fairly straightforward, it can get a bit complicated when it comes to musical works. This is because there are usually several people involved in creating music. The lyrics could be owned by a lyricist, the musical work is generally owned by the composer or musician and the sound recording is usually owned by the company who releases the song. To bring an action against Del Rey for copying a part of the musical composition, Radiohead would need to be the rightful owner of the musical work.

Substantial Part

The substantial part is not determined by a percentage, word count or, in the music industry, note by note. The assessment is one of quality, rather than quantity. Therefore, the question is whether the copied material is an essential part of ‘Creep’ and whether it is recognisable in Del Rey’s ‘Get Free’ to a reasonable person.

Copying

This is a test of identifying a causal connection. Radiohead must prove that it is reasonable to presume that Del Rey has heard ‘Creep’. Generally, with a popular song like ‘Creep’, a causal connection would not be difficult to prove.

Available Remedies

If Radiohead is successful in proving their case, there are some remedies available to claim against Del Rey.

Injunction An order made by the court restraining the infringer from engaging in the further infringing conduct.
Damages Damages compensate the copyright owner for the loss they have suffered as a result of the infringement.
Account of profits This allows the copyright owner to claim the profits made by the infringing copyright.

 

A copyright owner can seek an injunction in addition to damages or account of profits. However, they cannot claim both damages and an account of profits.

The Reality

Surely you’ve heard a song and thought, ‘hey, that beat sounds like another song’ or ‘that melody sounds oddly familiar’ or ‘isn’t that the same tune as another song?’. The reality is that music is often influenced by old hits or popular contemporaries.

So then why are there music copyright infringement cases popping up everywhere? The reality is that most disputes are settled out of court to avoid the litigious costs and the potential public disparagement. But this does not mean that it doesn’t still come at a cost.

Key Takeaways

If you want to protect your music, there are three things  you can do:

  1. Understand your rights. Make sure you know who are the owners and the exclusive rights you hold as the copyright owner.
  2. Be proactive. You can set up Google Alerts so that you are notified whenever your music is mentioned. This is also a great way to ensure that your marketing strategies are working.
  3. Upload your music to YouTube. YouTube offers a system called Content ID, which allows owners to identify and manage their content on YouTube. YouTube scans every new video against their database. If the scan identifies a similar previously submitted video, the owner of the first video will be notified.

If you need help enforcing your rights or if you think someone has infringed on your copyright, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Alexandra Shaw
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