Every year there is at least one big case of plagiarism that everyone talks about. This time it arrived fast. Radiohead sued Lana del Rey, arguing that the song "Get Free" (2017) by this artist replicates the iconic "Creep" (1992).
Radiohead sued * Lana del Rey for her song "Get Free" (2017) alleging that plagiarized the melody of "Creep" (1992).
(* Lana del Rey says they sued her, Warner / Chapell released a statement denying this, they can compare the two songs here)
These discussions of similarity always have conflicting positions.
The plaintiff sees everything the same,
those who defend themselves claim originality.
The discourse is always the same and equally the two sides can be right.
It's simple: if you do your own work, you develop it with your own creativity and come up with a solution that reflects it is an original work. With that, it should be enough. With that we could defend ourselves.
Different thing is to take someone else's work and publish it as such; or build on this work (build little) and take it all as your own.
What I want to highlight here is that in these cases each of the parties has an "accurate" perspective. Radiohead can see that "Get Free" is similar to "Creep" and Lana del Rey says he wrote it without being inspired by that song.
What do we have left then?
To argue that it was a subject of "unconscious inspiration" like George Harrisón round. The Chiffons?
In 1976 George Harrison lost a lawsuit for having "unconsciously" plagiarized the song "He's so fine" in writing "My sweet Lord".
That precedent (applicable only in the US) is complicated. I think there should be nothing more difficult than to demonstrate unconscious plagiarism.
What we include there?
Our Spotify lists?
What sounds on the radio while we take a taxi?
The concept of "unconscious plagiarism" gives us the plane of speculation. To plagiarize it is necessary to propose it. You have to attribute the work of someone else and even try to hide it. I think there's a lot of "agency" in a plagiarism. Leaving that task alone to the subconscious is belittling behavior.
Almost everything is invented
Because almost everything is invented. If the unconscious plagiarism were true, to create something we should have access to the Borges Library of Babel and take care not to emulate anything.
That would kill all the creators.
Almost always there is someone who has arrived at a similar solution. So we do not know him. Music on the western scale plays with twelve tones. The possibilities are endless many would say ... but the tonal music is limited.
There Radiohead have a tail of straw in front of Lana del Rey.
The melody of "Creep" It looks so much to "The Air That I Breathe" (1974) of The Hollies that Radiohead granted its authors Albert Hammond and Mike Hazlewood a royalty percentage on "Creep".
At the moment it is divided the ownership of "Creep" between seven different holders, the five members of Radiohad and Albert Hammond and Mike Hazlewood.
When the song is good, you always see owners, would say Carlos Vives.
That's why gastritis is the biggest promoter of these demands. The fatter the song, the more likely it is to have a plagiarism claim; and the more gastritis there are fewer possibilities of arrangement.
Radiohead hates "Creep", they hate to play it live and for the public to ask for it, his confrontation with Lana del Rey is a matter solely of money.
Lana del Rey wrote that her legal team offered Radiohead the 40% of the "Get Free" royalties. They did not accept They will only accept the 100% according to Lana del Rey. Surely because dividing the 40% between seven should seem like a bad business.
It's true about the lawsuit. Although I know my song was not 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.
- Lana Del Rey (@LanaDelRey) 7 January 2018
But what Lana del Rey offered is not negligible. The proposal was generous, especially if we take into account that in the case of "Stay With Me" (2013) by Sam Smith gave Tom Petty and Jeff Lynne the 12.5% each for the similarities of their song with "I Will not Back Down" (1989).
Another more recent example is "Shape of you" (2017) by Ed Sheeran. He openly accepted that he used part of "No Scrubs" (1999) of TLC as part of the song and for that reason - before the demand, only with the threat - they gave the 18% to the composers of "No Scrubs."
In this New York Times video, he talks about the composition process and includes references to "No Scrubs."
The public domain
The other usual way out is when (accessing the Library of Babel ... that is Internet) the legal team of the defender finds a public domain work that is equal to the one disputed.
The defense of Led Zeppelin on the plagiarism of "Starway To Heaven" (1971) to the song "Taurus" (1968) of Spirit included that the asides of the riff guitar that was being questioned were in the public domain.
They were based on "Sonata di Chittarra, and Violino, with il suo Basso Continuo" Giovanni Battista Granata, but they could add the "Suite e Em (Part 5) Bourrée" of Bach if they had wanted.
The argument was simple: if there is plagiarism, there are no valid rights and therefore there is no harm.
The case of Led Zeppelin was resolved in their favor partly because Robert Plant and Jimmy Page - in their words when testifying in the case - had so many substances inside in the sixties and seventies that they do not remember anything. There were so many that surely there was not even room for "unconscious plagiarism".
In the end nobody escapes
My theory is simple. The similarities are inevitable. Copyright gives the possibility to claim, but that claim depends on the degree of gastritis of each of the parties.
And in the end, we are all almost always copying Cat Stevens (Yusuf).
Enanitos Verdes "Frances Limón" vs. Joe Satriani "If I could Fly" Vs. Coldplay "Viva la Vida"
Cat Stevens - Heaven [3: 12]
PD: The theme that musicians can borrow up to four measures of another composition is an urban myth that musicians invented to sleep peacefully at night. It is not true. Do not trust.