Suing the Sued: A Case Study of Copyright Chain Reaction in the Music IndustryAlbert Hammond v. Radiohead v. Lana Del Rey
- Michael Tringale
- 21 hours ago
- 10 min read
Written and Published by Michael Tringale
Abstract
This paper explores a rare and unique scenario in the music industry and the complexities of copyright infringement in Right to Sue After cases. Right to Sue After is when a previously accused infringer files an infringement claim in a separate lawsuit against another artist involving the same record. Focusing on the chain of suits between Albert Hammonds's “The Air That I Breathe,” Radiohead’s “Creep,” and Lana Del Rey's “Get Free”, this paper examines how copyright infringement claims have evolved. Through my analysis of the historical context, legal challenges, and implications on the industry and creative rights, the paper questions the ethical practicality of the Right to Sue After Infringement claims. The paper also explains how these cases shape the balance between infringement and inspiration and proposes a call to legal reinforcement to suitably address the Right to Sue After cases that protect an artist's work.
Introduction and Thesis
Music is a creative expression composed of many musical notes, rhythms, melodic lines, and characters. But what happens when we feel like our character is compromised? One of the most fascinating yet contentious areas in music law is an artist/rights holder exercising their right to sue for copyright infringement after they were defendants for infringement on the same composition. Right to Sue After is a term I have used to describe this rare case. Albert Hammonds's “The Air I Breathe”, Radiohead's “Creep”, and Lana Del Rey's “Get Free” illustrate a unique opportunity to examine a chain-like copyright infringement case in the music industry. This paper argues that while the law allows for lawsuits of the likes, it raises concerns about ownership, substantial similarity/access, and limitations regarding inspiration vs copying.
Historical Context
In 1974, a band called “The Hollies” covered a song written by Albert Hammond and Mike Hazelwood called “The Air I Breathe” which became a commercial success for the band and the song. In 1993, Thom Yorke(Frontman of Radiohead) wrote the song “Creep” which would become an anthem of the 90s and the band's most commercially recognizable song. However, the two songs shared the same chord structure and similar melodic lines/phrasing, which became points of spark for legal action on behalf of Hammond and Hazelwood's record. These disputes were later settled outside of court when Radiohead offered to give Hammond and Hazelwood royalties and co-writing credits on the song, acknowledging substantial similarity in the tracks. In 2018, Lana Del Rey came to Twitter to share with fans that the Radioheads publishing team accused her of copyright infringement on “Creep” in her 2017 song “Get Free”. Lana released a song called “Get Free” off her fifth studio album, “Lust for Life” The song was criticized for its similar melodic phrasing and chord progression to Radiohead’s “Creep”. According to BBC, Lana Del Rey stated Radiohead's publishers were persistent in obtaining 100% of publishing despite them avoiding taking the case to court and her offering 40%(BBC, 2018). Lana Del Rey later confirmed at her 2018 Lollapalooza set in Sao Paolo, Brazil, that the lawsuit was over and that she could play the song whenever she felt like it. Although the cases were unresolved in a public court of law, they illustrate an example of legal inheritance of infringement, as Radiohead were defenders of their intellectual property and were now the enforcers of rights regarding the same record. It also brings to question why there is so much back and forth between the parties regarding misinformation. And was this why they settled that particular dispute out of court?
Legal Issue I: Derivative Rights and Protected Original Elements
An important legal issue to acknowledge regarding this case is how and to what effect an artist who infringed on a work can file an infringement claim on that same work. In Article I, Section 8, Clause 8 of the United States Constitution, it is written, “[The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. This clause is what gives Albert Hammond the right to sue Radiohead for Infringement. They settled the dispute by adding Albert Hammond and Mike Hazelwood as co-writers on “Creep”. It also raises the question of how this sets a precedent for derivative rights and what is copyrightable in your work if you infringed on someone else. In the past, courts have ruled that derivative works can obtain original protectable elements, assuming the use does not violate the copyright. A notable case study is the Estate of James Oscar Smith v. Cash Money Records. In this case, Aubrey Drake Graham was accused of infringing upon the Estate of James Smith for using Smith's uncredited vocal from the song “Jimmy Smith Rap” on Graham's own record “Pound Cake / Paris Morton Music 2”. Cash Money obtained a license for the recording by Smith, but not for the composition. Cash Money Records defended with fair use in a transformative manner, ruling in favor of Cash Money Records. Subsequently, Cash Money Record was awarded copyright protection for the original elements of the song(Copyright, 2017). This case shows that despite using a derivative work or material previously challenged in a court of law, you can still gain protection for substantial original expression and elements in a record. However, when the alleged infringement(Get Free) regards material previously found to be infringing(Creep), this becomes a complex case to settle.
Legal Issue II: Substantial Similarity and Precedent for Access
Another question is whether or not “Get Free” is substantially similar to Radiohead's “Creep”. Along with this question, we should also ask what elements are protectable under copyright law. Dan Bogosian, a musicologist, states in an article with Vulture that “the verses of “Get Free” obviously crib the instantly recognizable chord progression from “Creep,” it’s a famous one written as I-III-IV-iv, and duplicated chord progressions are so common in music that they can not be copyrighted”(Lockett, 2018). Chord progressions are interesting to note because “The Air That I Breathe” shares the same chord progression as both “Creep” and “Get Free” G B7 C Cm. So if the idea itself is not copyrightable, what is? Copyright.gov explains that “Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work”(Copyright, 2017). The law reveals that Radiohead infringed on "The Air That I Breathe" because of the similar expression of the ideas. These elements could be the rhythm of the drums, the buildup and heavier chorus, and the almost identical melodic line. However, this case begs the question, is it fair to file infringement against Lana Del Rey based on Radiohead's-protected expression, which they lifted from Albert Hammond? “Creep” only exists because of its extreme influence by the Hollies and its substantial similarity. This case encourages the music industry to define what original expression means in the world of copyright. And what can be copyrighted and used in a case of substantial similarity?
Access is another essential topic of discussion to prove infringement. Access means you have to prove that someone had access to your original work in order to infringe on it. In the case of Radiohead, they admitted to seeing the substantial similarity and offered to pay royalties ahead of time, showing an agreement to access. In the case of Lana Del Rey, she made a tweet disregarding the influence of "Creep" on her song yet ironically admitted to access by admitting she knew about the record. Now the question is, if Lana did infringe, did she subconsciously? This perspective has influenced the outcome of cases such as George Harrison's “My Sweet Lord ”, and the Chiffon's “He's So Fine” which was one of the cases that set the precedent for unintentional infringement. Regardless, access is essential in determining the ruling of an infringement case. Simultaneously, it is very subjective. For example, if the Hollies didn't release their cover of “The Air That I Breathe”, Albert Hammond would not have a strong infringement claim. The reason is that The Hollies cover made the record popular, even if Radiohead did rip the original. Similarly, If the roles reversed and Lana Del Rey sued Radiohead for Infringement, her case would not be strong since it is the closing track on her fifth studio album and by no means her most popular. On the Contrary, “Creep” is Radiohead's most commercially successful song, making it hard to deny access. These legal issues encourage the industry to think about what is copyrightable material, what is used for substantial similarity, and how access might be an unfair metric of infringement in many cases.
Legal Issue III: Ethical Copyright Enforcement?
While Radiohead's publishing team is legally allowed to defend “Creep”, ethical concerns come into play regarding the original protected elements in “Creep” vs “The Air That I Breathe”. Is it moral for Radiohead to sue Lana Del Rey for “Get Free” when Radiohead derived the work they are suing her for from The Hollies, Albert Hammond, and Mike Hazelwood? According to the New York Times, “If Warner/Chappell’s efforts are successful, Mr. Hazlewood and Mr. Hammond would also be credited, alongside the members of Radiohead and the three writers currently listed: Rick Nowles, Kieron Menzies, and Ms. Del Rey”(Sisario, 2018). The case brings to question how we should look at infringement cases. Many artists have previously been accused of exploiting their ownership not to protect the original creative elements of their work but to be gatekeepers. An example that aligns with this is Ed Sheeran's "Thinking Out Loud" and Marvin Gaye's "Let's Get It On" where Ed Sheeran uses the same chord progression. This lawsuit left Ed Sheeran feeling taken advantage of a day as a modern-day musician due to the lack of substantial similarity in the songs. In a video posted by Loudwire on YouTube, you can hear the similarities between all three back-to-back showcases how “Creep” and “Get Free” rip the same melodies from “The Air That I Breathe”, bringing to question what original elements is Radiohead protecting or are they gatekeeping?
Industry Impact
These types of cases are harmful to the music industry. The reason is that it restricts creativity. The whole point of copyright is creative protection, and “Without legal protection, competitors could freely copy such creations, denying the original creators the ability to recoup their investments in time and effort, reducing the incentive to create in the first place”(Constitution, 2018). Somehow, even though Radiohead does have copyright protection of “Creep” it feels like they are still trying to deny Lana Del Rey the ability to recoup her investments. The case feels this way since Radiohead ripped the melody from Albert Hammond and Mike Hazelwood, and chord progressions are not copyrightable. Without these two factors of substantial similarity, Radiohead has no case. What is true about cases like this and infringement cases, in general, is that they limit the amount of creativity, as the Constitution states. It is very frustrating for artists who spend a lot of time and money to make a song just for someone to sue for infringement. One artist in particular who has vocalized his frustration was Ed Sheeran. According to the New York Post Ed said “If that happens, I’m done — I’m stopping,” Sheeran, 32, responded. “I find it really insulting to work my whole life as a singer-songwriter and diminish it”(Schnitzer, 2023). This case shows how infringement cases, including revolving ones, highlight how detrimental they can be to an artist's drive for creativity. It should inspire us to fight for artist rights and fairer regulations regarding copyright claims.
My Opinion
The music industry should have more regulations on what constitutes copyrightable elements and what is considered substantial similarity. In addition, there should be more specification as to what the original defendant is permitted to file infringement claims for in more cases of the Right to Sue After. Why should Radiohead be allowed to sue Lana Del Rey for infringement on the melody and chord structure when chord structures are not copyrightable, and the melody was lifted from Albert Hammond and Mike Hazelwood's song? It does not make much sense considering Radiohead was trying to sue for infringement when what they are suing for is not an original element of “Creep”. I also find it ridiculous that Warner Music Group and Radiohead's publishers were allegedly demanding 100% of publishing when only ⅓ of “Get Free” resembles similarity to “Creep”. A more fair split, if any, would be the 40% Lana Del Rey and her team proposed. To serve the music industry there should be more definable language and law practices that outline how these infringement cases would work instead of handling them outside of court. By addressing the issue, we allow artists to exercise creativity in a stress-reduced environment where artists know there are tighter restrictions regarding the Right to Sue After cases.
Conclusion
In conclusion, “The Right to Sue After” represents an interesting and yet undefined area of entertainment law that needs to be addressed approaching a more digital reliance era where Derivative Rights/Protected Elements, Precedent for Substantial Similarity and Access, and Copyright Ethics are questions of importance to fairly address chain reaction infringement claims. Without addressing these concerns, we potentially subject artists to more restrictive creative environments where there are loopholes in copyright law that leave art vulnerable. The case analyzed in this paper is, as of now, a 1:1 situation. However, the claim offers critical questions regarding protection and gatekeeping. If an artist gets sued for copying a melody, why should they be able to sue someone else for using that same melody? There needs to be more discussion on what to do in these cases so that artists who may fall into a similar case have a defense they can use to protect their art and people trying to take advantage of loopholes in copyright law can’t file a suit on unoriginal elements they lifted from another record.
Works Cited
Constitution Annotated. “Overview of Congress’s Power over Intellectual Property | Constitution Annotated | Congress.Gov | Library of Congress.” Constitution Annotated , 2022, constitution.congress.gov/browse/essay/artI-S8-C8-1/ALDE_00013060/.
Copyright Office. “Estate of James Oscar Smith v. Cash Money Records, Inc., ...” Copyright Gov, 2017, www.copyright.gov/fair-use/summaries/estate-of-james-oscar-smith-cash-money-records-no.1-14-cv-02703-2017.pdf.
Copyright Office , US. “What Does Copyright Protect?” What Does Copyright Protect? (FAQ) | U.S. Copyright Office, 2017, www.copyright.gov/help/faq/faq-protect.html#:~:text=Copyright%20does%20not%20protect%20ideas,your%20written%20or%20artistic%20work.
Lockett, Dee. “Making Sense of Radiohead’s Nonsensical Copyright Dispute with Lana Del Rey.” Vulture, Vulture, 11 Jan. 2018 www.vulture.com/2What Does Copyright
Loudwire. “Radiohead’s ‘Creep’ vs. Lana Del Rey’s ‘Get Free’ vs. The Hollies’ ‘The Air That I Breathe.’” YouTube, YouTube, 2018, www.youtube.com/watch?v=oaXFc4Zb78s.
Savage, Mark. “Lana Del Rey and Radiohead ‘Settle Copyright Dispute.’” BBC News, BBC, 26 Mar. 2018, www.bbc.com/news/entertainment-arts-43540358.
Schnitzer, Kyle. “Ed Sheeran: ‘I’m Done’ If Plaintiffs Win in Marvin Gaye ‘Let’s Get It on’ Copyright Lawsuit.” New York Post, New York Post, 2 May 2023, nypost.com/2023/05/01/ed-sheeran-im-done-if-found-liable-in-marvin-gaye-lets-get-it-on-copyright-lawsuit/.
Sisario , Ben. “Radiohead Denies Suing Lana Del Rey over Copyright (but Still Wants Credit) (Published 2018).” New York Times, 2018, www.nytimes.com/2018/01/09/arts/music/lana-del-rey-radiohead-copyright.html.