
Lana Del Rey, Radiohead, and the Difficulty of Making Original Music - nikbackm
https://www.newyorker.com/culture/culture-desk/lana-del-rey-radiohead-and-the-difficulty-of-making-original-music
======
cJ0th
As a hobby music producer I just can't wrap my head around the logic behind
copyright infringement. It's so arbitrary. It's illegal to steal a melody but
sophisticated chord progressions are fine. It's illegal to copy the text of
even the simplest verse but reverse engineering some complex synthesizer
sounds is fine.

Although I personally strive for it, I don't think originality is a point
worth discussing. Music is about expression first and foremost. The difficulty
we have today is that you can't freely express yourself. Many of the great hip
hop records of the 90s, for instance, couldn't be produced today because
sample clearing would be a nightmare.

I do, of course, understand that each work requires, errm, work. So I am fine
with some form of protection for the artist. But imho it should be a rather
broad protection. That is, releasing a cover without permission or selling
someone else work (i.e. 100% of the lyrics or melody or even arrangement...)
as your own is not ok. But I think as long as there is any form of creative
alteration involved then "copying" should be fair play. Especially when
several years or even a decade have past.

~~~
ebbv
That sounds reasonable but how do you define “any form of
creativity/expression” legally? That’s the problem.

If you know anything about writing music you should know why chord
progressions can’t be copyrighted. There’s only 12 notes, there’s not that
many unique chord progressions to be found in the Standard I/IV/V pop music
format.

Melodies and lyrics, on the other hand, there’s a nearly infinite supply.

The problem with limiting protection to only a few years is that would ensure
an even more brutal cycle of song “remakes” for all pop music which would be
even more stale than what we have now.

~~~
cJ0th
I'd say “any form of creativity/expression” means you take something and don't
copy it 1:1. Copying 100% of a (lyric|composition|: not okay, taking a subset
of it: fine. Admittedly, it has to be a bit more sophisticated than that. For
instance, getting away with just omitting the very last word would be
ridiculous.

> If you know anything about writing music you should know why chord
> progressions can’t be copyrighted. There’s only 12 notes, there’s not that
> many unique chord progressions to be found in the Standard I/IV/V pop music
> format.

yes and no. A chord can be played in many ways. For instance, when you play C
major you could play the root an octave below the third and the fifth or one
octave up. This alone is no worth copyright. But when the way every single
chord of a progression is played is copied it gets questionable, imo. Even
more so when you look at "jazzy" chords where you can sprinkle some "non
necessary" notes in here and there for color.

> The problem with limiting protection to only a few years is that would
> ensure an even more brutal cycle of song “remakes” for all pop music which
> would be even more stale than what we have now.

You could be right, but personally I am not convinced.

~~~
QAPereo
So let’s say I don’t copy 100%... but I asymptotically approach it. At what
decimal do I infringe, or as long as I never reach unity am I cool?

~~~
cJ0th
Judges are humans not computers. The downside is, some sentences are
incredibly unfair. The upside is, it works pretty well most of the time.

Just look at the Fair Use doctrine. It seems to work reasonably well for
literature. Why can't it apply to music? In particular this:

> The third factor assesses the amount and substantiality of the copyrighted
> work that has been used. In general, the less that is used in relation to
> the whole, the more likely the use will be considered fair.

If a song has 500 words then wouldn't you say copying 20 is fair?

[https://en.wikipedia.org/wiki/Fair_use](https://en.wikipedia.org/wiki/Fair_use)

~~~
hashkb
Depends which 20. "I knew she was gonna meet her connection" maybe... "you
can't always get what you want, but if you try sometimes you might find you
get what you need" def not ok.

~~~
cJ0th
And why is it no okay? (Apart from that it is 21 words not 20 but I did not
mean to imply it has to be exactly 20. There is room for human common sense
and yes, it is not perfect and sometimes unjust.)

------
jimnotgym
For anyone who doesn't play the guitar, 'Creep' and the Hollies track is is
derived from come feature a rather obvious chord progression. Physically it is
the result of sliding an open E chord down the neck to produce higher notes
then, la piece de resistance, taking a finger off. Radiohead added a killer
feature of turning the gain up on the amplifier for the chorus, genius. It's
the kind of thing teenagers everywhere find in their second month of guitar
mastery.

It shouldn't even be copyrightable. The guitar is full of things like this
that are not great feats of musical theory but simple physical movements that
are bound to happen. This is why guitar music generally sounds so derivative,
because there are a number of obvious steps that all players will find quite
quickly.

Why should you get paid for the guitar equivalent of pressing all of the white
notes on a piano?

Edit: typo

~~~
mentos
If I was a lawyer I'd strum those 4 open E chords on a guitar then play all
three songs.

The Hollies - The Air That I Breathe, Radiohead - Creep, Lana Del Rey - Get
Free

Then maybe I'd make some argument about anyone who made 3 left turns and a
right turn to get to the court house today owes me a royalty for using my
elegant route without my permission. If you want to get to the court house
tomorrow you have to figure out any other permutation but mine.

~~~
thruflo22
Reminds me of the four chords song
[https://m.youtube.com/watch?v=5pidokakU4I](https://m.youtube.com/watch?v=5pidokakU4I)

~~~
rrauenza
...and the Pachebel Rant:
[https://www.youtube.com/watch?v=JdxkVQy7QLM](https://www.youtube.com/watch?v=JdxkVQy7QLM)

------
jasode
The issue with Lana Del Ray's " _Get Free_ ", Radiohead's " _Creep_ ", and
Hollies " _Air That I Breathe_ " is that we (and/or the courts) don't put the
chord progression of "I–III–IV–iv" in the same everybody-and-their-dog-has-
been-doing-it bucket as "I-IV-V" or the "I–V–vi–IV"[1] (axis of Awesome
parodied in the youtube video[2]).

If musicologists for Lana Del Ray can find an out-of-copyright work such as a
very old classical piece or folk song that uses that progression, the
potential lawsuit would have no merit. Until then, that chord progression's
very identifiable "chromatic movement and eerie tension" is easy to notice so
it will always attract new lawsuits.

[1]
[https://en.wikipedia.org/wiki/I%E2%80%93V%E2%80%93vi%E2%80%9...](https://en.wikipedia.org/wiki/I%E2%80%93V%E2%80%93vi%E2%80%93IV_progression)

[2]
[https://www.youtube.com/watch?v=5pidokakU4I](https://www.youtube.com/watch?v=5pidokakU4I)

~~~
Joeboy
I see your point (two unusual things being similar looks more suspicious than
two common things being similar) but I think two "I–V–vi–IV" songs that were
as melodically similar as Creep and Get Free would still be pretty suspicious.

Edit: Btw I'm not sure I-III-IV-iv is _that_ uncommon. It's in eg. David
Bowie's Space Oddity and Pink Floyd's Nobody Home. It sounds to me like an old
jazz / ragtime type progression although I'm struggling to come up with
examples.

------
the_gipsy
It id absurd to copyright a melody IMO.

Consider flamenco. It has about 10 base styles each with a specific scale,
melody (yes you are reading right!), beat, and structure. Then there are a
variety of variations, that perhaps change the structure or mix in another
melody.

Between the base melody parts, there are falsetas which are unique melodies.
These are also shared between guitarists. Some are considered popular and are
untraceable, if their first appearance is near the time of the invention of
recording devices.

The lyrics are also shared between singers. In fact it is quite rare for a
singer to compose any new lyrics of his own!

Furthermore flamenco does not really have “songs” like pop music has. There is
simply performance, where singers, guitarists, dancers and palmeros play.
Never a specific song, but just one style so that the structnure is agreed and
known. No one owns a verse, a melody or a dance move.

Flamenco is a music world totally incompatible with the western notion of
copyright, because it falls apart. Really the o ly thing that can be agreed on
is that one particular recording of a performance can have copyright.

~~~
ozim
I can imagine that some street flamenco artists were fighting over that others
were copycats. Probably you won't know about this because it is not
international drama and money involved are quite small.

~~~
the_gipsy
But that is never about specific verses, melody nor chord progression, because
those are ALWAYS shared. So there no objective way to tell the difference
between a variation and an attempt to copycat.

------
yohann305
Nowadays it wouldn't be hard to build a program that generates a 500+ hour
long instrumental piece which contains 80%+ of all song progression sequences.
Then release it under "free for commercial use" and nobody can every sue
anyone else in the future. Thank you very much

~~~
jasonkostempski
Won't it get you sued out of existence by every existing label/artist?

~~~
yohann305
i didn't think of it, we need the "satoshi nakamoto" of music

------
eat_veggies
This really reminds me of a short story someone on HN recommended a while ago:
"Melancholy Elephants," written by Spider Robinson.

[http://spiderrobinson.com/melancholyelephants.html](http://spiderrobinson.com/melancholyelephants.html)

~~~
fiduciary
This really opens the conversation, for me, at least, to Lorde.

~~~
ashark
I'm not following how the linked story relates to Lorde. Probably there's some
news I've missed. Could you fill me (us) in?

------
privacypoller
The interesting part of this is not actually the copyright infringement, but
the aggressive use by the Del Rey camp as a marketing opportunity. Her song is
a deep cut that was never a single and apparently Radiohead is trying to
settle out of court, yet she's actively pushing the narrative of a "100% claim
lawsuit" and how they're making her life a "living hell". Coupled with the
deliberate manufactured image of Lana Del Rey and the resulting exposure I
can't believe this in not an intentional ploy that's driving huge exposure to
both her and this substandard, at best derivative, song.

~~~
mmanfrin
What? Radiohead is demanding full royalties for the song, for a melody they
did not create. Why on earth should they just settle out of court?

------
billsix
I have "written" guitar riffs that I later found out were from a song I hadn't
heard in 5+ years. I had honestly thought that I wrote it.

~~~
jimnotgym
More than that, I have written guitar riffs and melodies and latter found that
they are the same as a song I have never heard before! I am sure this due to
the very constrained nature of what is practical to reach with your fingers,
the nature of the interval between strings, the tricks that hammer-ons allow
you to do between certain notes and not others, the way it is easier to apply
vibrato and bends to notes around half way up the neck and on the thinner 3
strings. Millions of possibilities for the competent jazz guitarist, but few
of them are practical for normal people.

------
bfsg
There is no such thing as creating an original. Everyone and everything is
inspired in some or many ways. You consciously or unconsciously select your
source(s) of inspiration. The guitarist of Radiohead is not playing some never
played before stuff, it's the basic guitar thing millions of guitarists play.
Everybody is copying everybody, changing only slight bits.

The whole music industry is stolen. And the worse part of this issue is that
Radiohead is not making a dollar less because of Lana Del Rey, instead they
just want to make some more of of her.

For some reason most people in this world want to own too many things they
never should own in the first place. Intellectual property should only come
into play if it really harms the 'original' authors revenue because of a
straight copy.

~~~
Applejinx
There's another twist. I'm a guitar player: I can play a guitar note literally
fifty different ways (on a single guitar/amp combination, no effects), if
'different' means 'every one can be ABX tested against every other one using a
typical normal person as listener'.

Anybody who's ever been into blues in any form knows it's how you play it.
Folks who have been into blues have been some of the most successful musicians
ever (see: Fleetwood Mac, pre Buckingham Nicks)

If you say 'love' or 'hate' in sincerity, does it matter that you've not come
up with an innovative way to spell it? It's part of an expression of your
intention.

Copyright seems a way to try and protect these intangible things by tying them
to a more abstracted 'key', and there's the problem.

I've recently listened to the Pixies' 'Brick Is Red', off Surfer Rosa. If you
defined their vocal melodies in terms of Hz rather than quantizing them to
nearest chromatic note and sixteenth-note timing, you'd find the vocalizations
were really REALLY distinct (and next to impossible to reproduce!)

Hanson are on record as saying that their hit 'Mmmbop' is never covered
properly. They're absolutely right. The chorus words go into a really fast
triplet feel that's not a straight subdivision of the beat, a triplet feel
that's not doubled by other instruments, and to screw up that timing means
you're screwing up something very fundamental to the hit quality of the song.

One of the basic problems here is boiling stuff down to abstractions that
serve as 'keys'. 'Mmmbop' in sixteenth notes is not 'Mmmbop'. 'Brick Is Red'
in MIDI is not 'Brick Is Red'.

------
elnygren
[https://open.spotify.com/track/61MoKejsY2k0hVb50zZ4Yn](https://open.spotify.com/track/61MoKejsY2k0hVb50zZ4Yn)

To be honest, probably anyone can tell that the intro and first verse is a
quite clear case of plagiarism. First 10-20 seconds is enough. It's the same
melody, same chords and even a similar way of playing those chords with a
guitar.

------
jsgo
I get that everyone is talking chord progressions, but honestly, to me in Del
Rey vs Radiohead: it is the vocals of the opening part of Get Free. Because
that's the part where I'm thinking "hey, this sounds like Creep" (not a
musician).

The Hollies and Radiohead, though, yeah, that's very similar accompanying
music.

------
odabaxok
Everything is a remix video series is worth watching in this topic. It covers
how every musician from Led Zeppelin to recent artists "remix" existing
melodies. Also, how remix is done in other genres (e.g. movies):

[http://www.everythingisaremix.info/watch-the-
series/](http://www.everythingisaremix.info/watch-the-series/)

~~~
combatentropy
People have accused me of being creative. But I always told myself I just
mixed from more sources. For example, your average high-schooler might try to
re-do a particular scene from a movie. Meanwhile, I would copy the camerawork
from one movie, the comedic tone from another, and the special effect from
another. People would tell me, you're so creative, even when the title of the
home video clearly reflected its influences (something like "The Umpire
Strikes Back").

What I love about the open-source movement is its embrace of letting others
take what they want from your work, be it the entire program, just a function,
or just a principle (not actually copying a single line verbatim). Maybe this
is because you learned early on that it was never "your" work in the first
place, but that you too had learned and copied from others.

It seems to be that society doesn't understand the creation of art. To most
people the artist is a wizard behind closed doors, creating works of genius
from nothing. This is why our copyright laws are too strong and too strict. In
truth, I think not just some but all artists work how I do: taking something
they like, bending it with something else that they like, and adding a pinch
of something else they thought was cool.

Further differentiation happens in the execution. For example, if you're
making a movie, a character you wrote may have been more obviously a rip-off
in the script, but now that you have this new actor playing it, it naturally
diverges further. Or you try to do a camera move you saw in movie, but your
own skill keeps you from executing it perfectly, and it takes on its own
character. Differences in the location and lighting further obscure the shot's
influence.

------
IAmGraydon
I read this article and have to admit that I instantly sided with Radiohead
because I have a natural bias toward them and against Lana. I'm just not a fan
of her music. Then I listened to her track. I'm very familiar with the
Radiohead track. Radiohead is just plain wrong on this one.

Here's the problem - your average jury/judge/lawyer does not have the required
music theory knowledge to understand how asinine Radiohead's case is. There is
a short list of 3-, 4- and 5-chord harmonic progressions that literally 90% of
popular music is based on. What makes these songs different is the overlying
melody and (to a lesser degree) the rhythm. Because these progressions are so
commonly used, your mind doesn't automatically go "this song sounds like that
song" because they all somewhat sound like each other (in a harmonic sense)
and none really sticks out. We focus instead on the melody and rhythm.

Now in the case of this Lana Del Rey song, she is using a far more rare chord
progression in the verse where the last chord in the progression moves from a
major chord to the minor of the same chord instead of resolving to the tonic.
It creates the sense of dark tension in the song. Radiohead also uses this
technique in Creep. Lana has really done nothing different from all the other
pop musicians who use the same harmonic progressions as each other, but in
this case there are very few songs to compare it to since it's a very non-
standard progression. So when you hear this next to Creep, your brain goes
"wow they do sound very similar". The melody of the vocals in the verse seems
to carry some similarity to Creep as well, but it's really a pretty natural
melodic line to sing over that progression due to how strong the color of the
harmonic sequence is. Most importantly, the chorus shares nothing in common
with the chorus of Creep.

In court, Radiohead will likely win because the general population just does
not understand this in-depth. They haven't written music and therefore don't
get how easily one song can sound like another with absolutely no plagiarism
intended. The sad thing, to me, is that Radiohead DOES understand this and
they are still choosing to go ahead with the lawsuit against another creative
artist. I guess that's what happens when you still need to make money and your
career effectively ended decades ago.

~~~
rsfern
The rest of your post aside, Radiohead are still touring internationally and
writing great music... their latest album was released less than two years ago

~~~
IAmGraydon
I know - I was being a bit snarky there because what they did was in bad
taste, in my opinion. I'm actually a fan of their music, though they are no
longer the huge commercial success that they were in the 90s.

------
tr0ut
I think this is just the nature of music. It requires a rather rigid system
which does not offer enough diversity to be completely unique. All musical
genres need to at least share the same root elements for association.

[https://youtu.be/Co9mW_9hH2g](https://youtu.be/Co9mW_9hH2g)

~~~
cturner
Western tonality has some rules. Composers can operate outside of that if they
want. With computers, a single composer could make up a new set of rules for
every piece. You can turn a drum beat into a note by accelerating the wave
form, invent your own scales.

It is interesting that even electronic artists tend to operate within the
constraints of the western tradition. It is probably a struggle to find an
audience once you start doing wacky things. Or maybe it will happen, but has
not yet.

~~~
d13
Electronic artists are limited by the rules programmed into their software,
and very few people realize how severely limiting those rules are - they make
99% of the decisions for you. The fundamentals are never questioned, but it's
only by questioning those fundamentals that true can innovation happen. If you
want a mainstream audience, fine, if not, throw your laptop out the window :)

~~~
jdietrich
>Electronic artists are limited by the rules programmed into their software,
and very few people realize how severely limiting those rules are - they make
99% of the decisions for you.

That isn't remotely true. Yes, you can _choose_ to quantize to a 4/4 grid, but
that isn't mandatory. You can _choose_ to operate in equal temperament, but
it's relatively straightforward to work microtonally in most DAWs,
particularly Reaper. Hugely popular instruments like Xfer Serum, ZynAddSubFX
and UVI Falcon have full support for microtuning.

IMHO, it's far easier to make properly weird music in software than with
traditional instruments. You have a vastly greater range of timbral choices,
you have total control over intonation and you can program complex polyrhythms
that would be far beyond the abilities of most professional musicians. If you
really want to go balls-out on the weird, just learn Pure Data - there's
literally nothing that it can't do.

------
acobster
> _Sebastian Tomczak, an electronic musician from Australia, uploaded a ten-
> hour white-noise video to YouTube, and was promptly walloped with five
> infringement claims. YouTube’s automated Content ID system scans all
> uploaded videos against a database of copyrighted material; any overlapping
> content is flagged. When a supposed infringement is detected, the copyright
> owner can either have the video removed, or allow it to remain, and
> automatically garnish any advertising revenue that it might generate._

This kind of IP shenanigans is going to continue for as long as the burden of
proof is on the party doing the "infringing." YouTube and platforms like it
are built with this inherent bias toward copyright holders, despite the absurd
frequency of false positives. On one hand, I can see how this _might_ protect,
say, indie film studios who don't have the resources to chase after everyone
who posts their movies on YouTube illegally. At the same time, when a system's
incentives result in bullshit like Fair Use protections being completely
ignored[0], it's time for a new system.

Mammoth, centralized systems like YouTube are, unfortunately, still Really
Hard to maintain without the backing of a proportionately mammoth company with
lots of resources. You can be sure that that company's interest will often
align with those of others with deep pockets. So in my mind, as with many of
the big problems on today's internet, the technical aspect of this challenge
really stems from centralization itself.

[0]
[https://www.youtube.com/watch?v=nryFmUjtwEY](https://www.youtube.com/watch?v=nryFmUjtwEY)

------
milesward
I have struggled to master guitar-based songs on my handy electric Sousaphone
for years. I grab a small bass guitar and POOF: pop songs are mechanically
easy on this device, it's right there under your fingers. Turns out: the
instrument informs and constrains the creation.

~~~
milesward
I suspect the opposite is true: second-line on a p-bass is probably a pain in
the neck _.

_ pun intended

------
achr2
If any one or two of the song characteristics were similar most would chalk it
up to inspiration - but in this case every progression, melody, vocal slide,
beat, and crescendo is appropriated. Not to mention the tone of the piece and
lyrics.

------
fnl
I don't see why this isn't just another example of a broken system - copyright
is wrong, always. It was invented by the Inquisition, after all.

------
Justsignedup
This also underlines the rediculousness of how long copyright is. Seriously,
around what ~130 years?

Things inspire people, people copy, there isn't an infinite amount of good
ideas.

Frankly creep is old enough that I'd argue it should be copyable. Just like
other ideas. But alas the Mickey Mouse laws are really hindering progress IMO.

------
blawson
Well timed piece from the BBC related to this:

Has Pop Music Lots Its Fun?
[https://www.bbc.co.uk/music/articles/fb84bf19-29c9-4ed3-b6b6...](https://www.bbc.co.uk/music/articles/fb84bf19-29c9-4ed3-b6b6-953e8a083334)

------
minipci1321
Can't help but think of:
[https://en.wikipedia.org/wiki/Unaccompanied_Sonata](https://en.wikipedia.org/wiki/Unaccompanied_Sonata)

------
piokuc
I don't normally listen to Lana but I clicked on the YouTube link and saw the
title of the album is Lust for Life - is Iggy Pop planning to sue her too,
lol.

------
klakier
It's not hard to make original music. It's easy! But it's way harder to find
listeners of original music.

People like what they already know...

------
foobaw
I'll add on that this is an absurd lawsuit, in a music theory perspective.
However, my legal knowledge is shabby.

Are there any precedents regarding cases like these? If, for some peculiar
reason, Radiohead wins this case, then I can imagine they'll have the ability
to just sue anyone that becomes popular that uses a similar chord progression
/ melody. Considering that "original music" is almost non-existent in pop
music, what's going to happen then?

