by Seth Rogovoy
I love Radiohead. They’re probably one of my most favorite bands ever. But I had to laugh when I read the report in Vulture that Radiohead is suing Lana Del Rey for copyright infringement, claiming her song “Get Free” is a ripoff of their early hit song, “Creep.”
Savvy listeners might remember the first time they heard “Creep” – a truly pathbreaking recording – and recognized that the chord progression and melody were lifted – or “borrowed” — from the 1972 hit “The Air That I Breathe” by the Hollies. The original songwriters sued Radiohead, and the band reportedly settled with the writers, acknowledging the obvious and giving them a co-writing credit and a percentage of royalties.
So now Radiohead has turned around and is suing Lana Del Rey reportedly for 100 percent of the song’s publishing rights. Does this strike anyone but me as slightly ironic? And does this leave anyone else wondering, if Radiohead is successful in gaining 100 percent of the rights to Del Rey’s song, will they share some of that with the writers of “The Air That I Breathe”?
Frankly, this whole thing bothers me. While I certainly understand and respect the theory and reason behind copyright – not least because I own the copyrights to thousands of articles I have written over the years, as well as two books (and on occasion I have been successful in fighting the theft of my work by using the the threat of a copyright infringement suit) – I also think that excessive use of copyright law in some cases stifles artistic expression.
When I first heard “Creep” and recognized the DNA of “The Air That I Breathe,” I heard it as an amazing tribute to the original song. It sounded to me like the two songs talking to each other through time. The narrators of both songs exhibited a kind of pathological desperation, and I figured Radiohead was building upon the original to make something new. Likewise, and especially because “Creep” itself was a tribute – plagiarized or not – to a previous song, this is how I first heard Lana Del Rey’s “Get Free.” In the same way that the voice and theme of “Creep” – along with the music – related to “The Air That I Breathe,” so too, I thought, was Del Rey acknowledging an influence and paying tribute to Radiohead by (quite cleverly) building upon “Creep” in a song of her own fashioning, which, again, had a narrator beset with a similar despair. I believe the legal term for this is “fair use,” and I think that means that a work of art or criticism can “borrow” from a pre-existing work if it somehow comments upon or makes something new out of the original.
On the one hand, one sympathizes with the need to protect the original creator from falling victim to outright theft, and to have a system set up which allows for recourse, i.e., suing for copyright violation.
On the other hand, we have the insanity of probably the most famous case of all time wherein a songwriter was successfully sued for copyright violation. I speak of course of the 1970 George Harrison mega-hit, “My Sweet Lord.” Ronnie Mack, the writer of “He’s So Fine” — a 1963 piece of girl-group fluff made famous by the Chiffons — sued Harrison for copyright violation and won based upon the dubious notion of “subconscious plagiarism.” Unlike the Hollies’ “The Air That I Breathe” in relation to Radiohead’s “Creep,” Mack’s “He’s So Fine” had almost no musical DNA even to steal – it used a very simple and common chord sequence with only a wisp of a melody (which Harrison didn’t mimic), and the entire giddy, happy-go-lucky vibe of “He’s So Fine” was universes apart from Harrison’s anguished prayer, “My Sweet Lord.” Ever the ironist that he was, Harrison explained all this in his subsequent song, “This Song.”
Sure, artists need to be careful about the difference between influence, acknowledgment, paying tribute to a debt, and outright theft. But artists who feel that they have been ripped off – in this case, Radiohead – also need to be careful of the ground upon which they stand, and cognizant of the difference between love and theft.
Seth Rogovoy is not now nor has he ever been an intellectual property lawyer, although he is planning on marrying one. He also has a go-to guy he can recommend if you feel like you’ve been ripped off.