Can You Copyright a Drumbeat?

In light of the many high profile plagiarism cases making headlines in the music business over the last few years (Lana Del Rey, Led Zeppelin, Robin Thicke, Sam Smith, etc.), it felt like the right time to examine the topic of songwriting from where we all sit: the drum throne.

All of the above instances of alleged plagiarism involved similarities in melodies or chord progressions. But what about drum beats…can they by copyrighted?

As a starting point: any musical performance that is recorded in any form already has an automatic copyright in the recording of that performance. In other words, nobody could sample or otherwise exploit your recorded performance without your consent.

So the real question we need to ask: are drumbeats considered songwriting? If they are, then they form part of the musical composition and would be protected under the law just like a chord progression, melody or lyric.

The short answer: unfortunately, no. Drumbeats and drum patterns are not typically considered songwriting. The law makes clear that lyrics, melody, harmony and rhythm can be copyrighted. Most often, lyrics and melody are afforded protection under the law before the other two. This is arguably because the latter two are considered “accompaniment,” while the first two form the backbone of the composition, and remain consistent regardless of who is performing the composition.

This is actually a good thing in many ways. If every drumbeat was considered songwriting, the Bonham ‘Levee’ beat, the Bo Diddly groove, the ‘We Will Rock You’ stomp, even the standard four-on-the-floor pattern would all exist in only one song, and if you emulated any of them in a new song, you could be sued for plagiarism.

So really, the lack of protection affords us all the ability to do more in the studio, without fear of being sued. Singers and guitar players, for example, do not have such a luxury.

However, if you lifted the ‘We Will Rock You’ beat, along with similar hand claps and stomps, and added a vocal melody or phrasing similar to Freddie’s, that as a whole would likely be considered plagiarism. So it seems that a drumbeat and something else needs to be added before the piece will be considered songwriting.

Now, this is not to say that you don’t deserve a cut of songwriting when you write songs with your band. Many bands divide songwriting equally amongst all the members. The Red Hot Chili Peppers, Coldplay, etc. all divide the songwriting copyright equally for each song, even though the law doesn’t recognize the drummer’s contributions in the same manner. It’s a way of recognizing each member’s contributions as a whole to the songs and perhaps general operation of the band. In other words, it’s completely up to you and your band mates how the songwriting is divided for each song, regardless of what the law typically acknowledges.

As always, feel free to email me with questions, as songwriting is the most complex and sometimes confusing aspects of the music biz.

The Lana Del Rey and Radiohead Plagiarism Case: What You Need To Know

Your newsfeeds might be buzzing with the news that Radiohead are suing Lana Del Rey over her song “Get Free,” which they say plagiarizes their 1993 hit “Creep.”

Lana Del Rey tweeted yesterday: “It’s true about the lawsuit. Although I know my song wasn’t 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.”

Now, here’s where the plot thickens: what some news outlets are missing is that Radiohead was previously sued for plagiarism. The song they were sued over? “Creep.” The song shares a similar chord progression and melody to the song “The Air That I Breathe,” written by Albert Hammond and Mike Hazlewood and initially released on Hammond’s 1972 album It Never Rains in Southern California. The song became a major hit for The Hollies in 1974.

You can hear the three songs here:

Lana Del Rey – “Get Free”

Radiohead – “Creep”

The Hollies – “The Air That I Breathe”

Hammond and Hazlewood sued Radiohead for plagiarism and won. Radiohead claimed that the similarities were unintentional and subconscious, but agreed to give a percentage of the songwriting royalties and songwriting credit to Hammond and Hazlewood. According to Hammond, “Radiohead agreed that they had actually taken it … Because they were honest they weren’t sued to the point of saying ‘we want the whole thing’. So we ended up just getting a little piece of it.”

So: Radiohead is suing Lana Del Rey for plagiarism over a song that they actually plagiarized. The irony is strong with this one! This is the kind of case that gets entertainment lawyers (and music fans) very excited.

Plagiarism Cases More Common

Music plagiarism is a hot topic in the music industry these days. From Sam Smith to Bruno Mars to Ed Sheeran, artists seem to be accused of music plagiarism more than ever.

Del Rey is the latest in a string of high-profile artists to be accused of copying. Sheeran settled out of court with a pair of songwriters after similarities were found between his song Photograph and the Matt Cardle song “Amazing,” and also retrospectively added the writers of TLC’s “No Scrubs” to the credits of his enormous hit “Shape of You.” As we examined in my article here, Tom Petty and Jeff Lynne were added to the credits for Sam Smith’s “Stay With Me” in 2014, while in 2015 Robin Thicke and Pharrell Williams were successfully sued by Marvin Gaye’s estate for $7.4M, after it was found that their “Blurred Lines” plagiarized Gaye’s song “Got to Give It Up.”

What makes the Lana Del Rey and Radiohead case particularly interesting is the fact that both artists have a very impassioned, vocal fan base.

The comment section on the “Get Free” video is full of arguments on either side, and makes for some entertaining reading: “The Radiohead lawsuit brought me here. Similarities aside (and as a Radiohead fan for the past 20+ years), I must say this song is actually pretty good. Never heard of Lana Del Rey before this, but I’m glad I did. Thanks Thom!”; “Radiohead must need the money so they can pay the original writers of their song”; “yes they sound similar, but ask for 100% of this song’s profit? Didn’t Radiohead steal it from the Hollies as well? don’t they feel ashamed?”; “this song is really creepy”; and “this song sounds like Gucci Gang by Lil Pump…Lana a thief.”

Now that we’ve heard from the court of public opinion, what does the law say?

The Legal Test for Plagiarism

What constitutes music plagiarism? The line between inspiration and plagiarism is a fine one, and is the crucial distinction when it comes to music plagiarism.

As poet T.S. Eliot famously wrote: “Immature poets imitate; mature poets steal.”

The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming infringement must prove two things:

1) Access – that the infringer had heard, or could reasonably be presumed to have heard, the original song prior to writing their song; and

2) Substantial Similarity – that the average listener can tell that one song has been copied from the other. The more elements that the two works have in common, the more likely they are substantially similar.

Did Lana Del Rey Plagiarize?

Disproving “access” in 2018 is becoming more and more difficult, as music is ubiquitous and accessibility to any major hit is hard to deny.

So that leaves us with the test of “substantially similarity.”

It doesn’t take a trained musical ear to hear the similarities between “Get Free” and “Creep,” as well as “Creep” and “The Air That I Breathe.” The three songs are in different keys, but they follow an almost identical chord progression, played at approximately the same tempo.

The common thread between the three songs is the final chord in the progressions, which happens to be a minor chord. It gives all three songs a darker feel at the conclusion of the chord progression.

This is called a “minor fourth,” and it creates a hook because it doesn’t technically fit the key of the piece. It stands out and makes the progression memorable.

It is sort of the reverse of what Leonard Cohen famously referred to as: “the minor fall and major lift.”

Countless pop songs have used this technique over the years, including doo-wop hits of the 1950s, the Beatles songs “Blackbird” and “I Saw Her Standing There,” and David Bowie’s breakthrough “Space Oddity.”

In other words, there is nothing copyrightable about the minor fourth in and of itself.

My opinion: the verse melodies in the two songs are very similar, while the instrumentation is different. The choruses are quite different, in both melody and instrumentation.

But the similarities in the verse melody is striking, and in addition to the same chord progression, the phrasing of the vocal is very similar. To me, this warrants some songwriting for Radiohead.

But 100% of the songwriting? That’s just greedy. If Lana Del Rey did in fact offer 40%, I think Radiohead should have taken it, or maybe pushed for 50%, especially in light of their song’s plagiarism history.

The real irony is that Radiohead had all but disowned “Creep” since it’s release, refusing to play it in concert for years at a time and calling fans who requested it “anally retarded.” Their attitude towards the song seems to have changed in recent weeks!

The question remains: if Lana Del Rey is found to have plagiarized “Creep,” does that mean that Hammond and Hazlewood will also get a cut of the songwriting? We must always be mindful of the statute of limitations, but as we saw in the Led Zeppelin trial, this did not stop a case being brought for royalties going forward.

Whatever the case, this dispute promises to have far-reaching effects on the music industry, and a lot of people (myself included) will be watching it closely in the coming months.

 

Second Interview on Turkish National News!!

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Sometimes life is gloriously random. Turkish National News has chosen the Led Zeppelin plagiarism case as one of the top entertainment stories of 2016, and just interviewed me as part of their year-in-review program!! The year-end special will air every 4 hours on December 4th, and be seen by several million viewers. I’m getting quite the following in Istanbul…