It started, as most things do these days, with a tweet.
On Sunday, Lana Del Rey lamented that Radiohead has accused her of copying “Creep” with her song “Get Free,” and that, despite her best efforts to compromise, the case was going to court.
Music news and gossip blogs quickly decided there was “a Radiohead lawsuit,” and their reports instigated a series of heated online mini-trials on social media. By the time representatives of Warner/Chappell, Radiohead’s music publisher, got around to denying that they’d taken any legal action (while acknowledging that they had made a demand for song credit), the issue had been e-litigated in a series on online mini-trials.
The internet, of course, is a magical realm where no hypothetical is so improbable that it doesn’t require every last one us to stake out a firm position on the matter and defend it till our eyes bleed. Even so, this was an instance where we had even less to work from than usual, and so to argue (as some did) that a successful Radiohead infringement claim would gut the creative heart of the culture industry was as premature as debating how much President Winfrey will be able to accomplish in her first 100 days.
I saw people argue earnestly that Radiohead’s (nonexistent) lawsuit was based solely on a chord progression (how do they know this?), that chord progressions aren’t copyrighted (not strictly true—though it’d have to be pretty damn intricate to be considered original) and that if their (again, as-yet-unfiled) suit succeeded, they would expand copyright protections even further.
Partly because music copyright law is complicated and partly because the internet, these sorts of disputes attract bad reporting and worse rumor-mongering. Take the most high-profile copyright infringement lawsuit of recent years: In 2015 a jury found that Robin Thicke and Pharrell Williams had impermissibly copied Marvin Gaye’s “Got to Give It Up” for their hit “Blurred Lines” and awarded Gaye’s family $7.4 million. Critics justifiably noted that it was a dodgy verdict and a ridiculously inflated award, but many went beyond that to make insupportable claims that have persisted as urban legends.
For instance, reputable publications continue to state that the “Blurred Lines” verdict dramatically altered copyright law, saying that where previously you had to show that a song actually sounded the same now you could win a case based on two songs simply sharing a similar “vibe.” I’ve seen nothing in the court record to suggest that the judge recognized this argument, nor do Thicke and Williams raise this issue in their appeals brief. The elements of a musical composition that are protected by copyright law are the same as they were before the verdict, and for a very simple reason—jury verdicts don’t change the law. Judges decide what the law says; juries simply determine which facts presented are true, and whether those facts show that the law has been violated. Think of it this way: After O.J. was found not guilty, the definition of murder didn’t change in California.
Here’s the thing about copyright disputes: They seem sexy. They involve pop music celebrities and raise ideas about originality that each of us feels entitled to an opinion about. But copyright law is boring. In fact, all law is, no matter how many TV dramas have duped Americans into believing otherwise. A good lawyer is not a magical super-genius. Like a good accountant or a good journalist, she’s just a patient nerd who has a high tolerance for tedium, knows where to look things up, and hates to be proven wrong.
Of course, legal battles aren’t just won on facts and precedent—perception matters too. Regardless of what the law says, a jury would almost certainly not have awarded the Gaye family quite so generously if Robin Thicke hadn’t been such an asshole. And whatever you think of Lana Del Rey, she ain’t dumb about this stuff. The story here could easily have been told as “prefab phony rips off genius art-rock auteurs.” Instead, she’s spun it as “dinosaur-rockers’ lawyers try to shake down an independent young woman, threatening her creative vision.” That reframing certainly puts her in a stronger bargaining position now, and, if it comes down to what a jury might think, she’s three steps ahead of Radiohead’s lawyers.
There are plenty of reasons to hate the U.S. music copyright system, which typically benefits the wealthy and successful at the expense of the rest of us. (Like, you know, capitalism does generally.) Most catastrophically, lawsuits against sampling in the early ’90s ended an entire style of hip-hop. And threats of legal action consistently stymie musicians who don’t have the resources to defend against even frivolous claims. But if we’re going to understand what’s wrong with music copyright in America, we need to be accurate about what the law says. Even on Twitter.
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