Over the weekend, the internet erupted with the salacious news that Radiohead was taking Lana Del Rey to court. The gist was that the British indie-rock darlings would be seeking 100% of publishing rights for Del Rey’s “Get Free,” off her 2017 release Lust For Life, due to the song’s alleged similarities to Radiohead’s “Creep.”
Murmurs of the dispute spread before Del Rey confirmed it on Twitter: “It’s true about the lawsuit. Although I know my song wasn’t inspired by ‘Creep’, Radiohead feel it was and want 100% of publishing.” The tweet also seemed to indicate that the issue had been ongoing; Del Rey says she first offered 40% of publishing, but apparently the offer was turned down, with Radiohead looking to, as their fellow greedy countryman Harry Potter once articulated, “take the lot.”
To be entirely candid, I’m not the biggest fan of either artist. They’re both repulsively rich and famous, and neither has much to lose. But considering the implications of the suit amidst broader contexts and histories, the scenario in which Radiohead wins is a loss for artistry and open culture, and a win for restrictive copyright in music. That puts me in Lana Del Rey’s corner.
Radiohead is the latest in a long tradition of (usually elder) musicians trying to claim fragments of melody as distinctly and unquestionably their intellectual property. Artists like Tom Petty and Radiohead, musicians who’ve been positioned as friends of the fans and enemies of the music machine, have in fact acted against the interests of musicians and listeners by effectively placing melodies under lock and key. Of course, the finer points of this suit haven’t even been released yet, so we don’t know if it’s Radiohead or their label levying action against Del Rey. The parties involved aren’t the crucial focus of this argument, though. The focus is on the implications for music culture, and the ever-growing gulf between the propertied and unpropertied.
Derivative is not a slur, but a fact.
This latest case is made all the more laughably absurd given that “Creep” contains just one, endlessly repeating progression (I, III, IV, IV minor) through the entire song. Four chords. But the absurdity runs deeper, as Radiohead were themselves sued for allegedly plagiarizing “Creep” from the Hollies’ 1974 song, “The Air That I Breathe.” The suit was successful; Radiohead had to share royalties and writing credits with Albert Hammond and Mike Hazlewood, who penned the Hollies tune.
The precedent that’s been set, time and again, privileges Artist A as creative genius, ‘original,’ the real deal, and Artist B as a leeching hack. Tom Petty got writing credits on Sam Smith’s “Stay With Me,” but the reality is that Tom Petty was derivative, too. The Rolling Stones, who (via Allen Klein) pulled one of the most revolting and godless abuses of copyright law when they stripped The Verve of any creative control over, as well as virtually any money generated from, their hit, “Bittersweet Symphony,” are derivative. Radiohead is derivative. Everyone derives their work from something else, because our brains are a constantly-spinning tumbler into which all the stimuli around us are thrown and jumbled up, only to be recalled and regurgitated into whatever we produce. Derivative is not a slur, but a fact.
These lawsuits are nothing new, and it’s true that, unfortunately, precedent has been established that privileges artists in Radiohead’s position. But it’s especially disappointing that Radiohead has turned heel on their well-curated egalitarianism and anti-industry bluster. When they released 2007’s In Rainbows, it was put online to download for free or pay-what-you-can (a few months later, they’d treat it to a proper label release). It was praised as a rebellious move in an increasingly vertically-integrated industry. Later, they defended a remix artist’s right to chop up and restyle the record. It was kinda cool.
For a band so trenchantly and visibly dedicated to possibilities for free and open culture, the suit against Lana Del Rey reflects not just a back-pedal for the band, but for open culture itself (though, as critic and industry expert Gary Suarez points out, “One good thing coming out of this Radiohead lawsuit is that people may finally start to recognize the absurdity of the artificial anti-establishment narrative that’s been created around [the band]”).
Copyright law and intellectual property have, traditionally, negated the interests of progress and elevated the interests of a ruling class.
Intellectuals have railed against this for years. It’s why Lawrence Lessig devised a range of alternative copyright options with his Creative Commons. Rosemary Coombe, the Tier One Canadian Research Chair in Law, Communication and Culture at York University, wrote in 1998 that “overzealous application of intellectual property protections” robs art of humanity, stripping others of the ability to “challenge meaning and transform meaning.” Over 30 years earlier, French social theorist Guy Debord went a step further: “Plagiarism is necessary. Progress depends on it.”
Of course, Debord isn’t suggesting we copy other people’s works and pass them off as our own. The plagiarism he refers to is the kind we are all guilty of: the subconscious kind, in which everything is referential, where our original production is merely a series of fragments of things we’ve previously consumed. Had D.R.M. Productions, who put out the Robert Mitchum classic Thunder Road, decided to flex their copyright unfairly, they might’ve picked a bone with Mr. Authenticity himself, Bruce Springsteen. Perhaps they realized that handcuffing a young artist wasn’t worth it.
There are proper implementations of copyright, which benefit artists who deserve to be benefited, like when Willie Dixon took Led Zeppelin to task for aping he and Muddy Waters on “Whole Lotta Love.” Dixon was successful, gaining songwriting credits to which he was obviously entitled. It was a justified check for a band that cultivated a sound ripped from black blues musicians, and it wasn’t anything like the Rolling Stones’ gutting of The Verve (an especially ironic case, given the Verve were nailed for using a symphonic reworking of Stones cut “The Last Time,” but that song itself was a clear cop of The Staples Singers’ “This May Be The Last Time,” another example of white musicians stealing black artistry).
The morality of the thing aside, the hubris of trying to copyright a chord progression at a certain tempo is staggering, and also indicative of the severity of the issue: where does it end? When musicians can be penalized for plagiarizing a ‘vibe’ (aside: fuck Robin Thicke), culture suffers. We lose the ability to critique, re-contextualize, and play with works that came before us. When everything’s been done before, those are necessary tools.
So, consider us Team Lana.