TOAST THEORY

There is a familiar saying that “where there’s a hit, there’s a writ”, and we never have to wait very long to read in the press another case of artists (or their estate or their lawyers) laying accusations at the feet of another artist who they believe has stolen their creation. At the time of writing, there was a particularly interesting one that the press reported. It is interesting because the song in question has already been through the legal process of another artist laying claim to it itself and the song having to state that it was co-authored already (at first, it was coproduced without consent, but then consent was retroactively applied). In this case, BBC music reporter Mark Savage, reported the following headline, “Lana Del Ray Says That Radiohead Are Suing Her” (BBC 2018), and on her Twitter account, she let it be known that:

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.

(Lana Del Rey 2018).

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The song in question is Lana Del Rey’s ‘Get Free’ (2017). The BBC article then notes that “Interestingly, Radiohead themselves were successfully sued by The Hollies over Creep’s similarities to ‘The Air That I Breathe’. Albert Hammond and Mike Hazlewood are now listed as co-writers for the song, and split royalties with the band” (BBC 2018). Larry Bartleet writing for the NME gave some clarity on the issue:

Radiohead’s publisher denies that any such lawsuit exists but explains that they are asking for Radiohead to be credited on the song. A statement from Warner/Chappell reads: “As Radiohead’s music publisher, it’s true that we’ve been in discussions since August of last year with Lana Del Rey’s representatives. It’s clear that the verses of ‘Get Free’ use musical elements found in the verses of ‘Creep’, and we’ve requested that this be acknowledged in favour of all writers of ‘Creep’. To set the record straight, no lawsuit has been issued and Radiohead have not said they ‘will only accept 100%’ of the publishing of ‘Get Free’”.

(Bartleet 2018)

Not surprisingly, those on social media responded in a variety of ways in support of, or against, each artist, but many noted the problem of owning a melodic sequence or a chord structure. So if Lana Del Rey’s song ‘Get Free’ is adjudged to have come from ‘Creep’, and ‘Creep’ from ‘The Air that I Breathe’, then we can trace that song back to the one before it and that song to the one before that, and so on, until we get (hypothetically) to the very first song. We have done the “research” and have found the very first song, the song from which all others come, and the very first song that was written before all other songs is called ‘This Song Sounds Like Another Song’. If Warner/Chappell want an acknowledgment in favour of “all writers of ‘Creep’”, then it should hold that every song credits every contributor from the writer(s) of ‘This Song Sounds Like Another Song’ onwards. Ridiculous, of course, but (reductio ad absurdum) which bit is ridiculous, my example or the real situation?

Baudrillardian notions of simulacra in recording are a firm part of the music production curriculum now for those of us teaching music production musicology in higher education, and Auslander, pulling on the work of Gracyk and Baudrillard, notes the simulacra of the recording as the copy that precedes the real (see Auslander 1999; Baudrillard 1994 [1981]; Gracyk 1996). The concept behind this hypothetical first song ‘This Song Sounds Like Another Song’, is of course to highlight the questionable link between origination and ownership, as cosmologist Carl Sagan said, “If you wish to make apple-pie from scratch, you must first create the Universe” (Cox and Ince 2017, p.78). This system of ownership will have to crash at some point in the future but for the moment at least it is fair to say that the Lana Del Rey and Radiohead conflict will not be the last of its type and the crash will not be happening anytime soon. And so, lots of songs (that sound like other songs) have been claimed to be owned, and the lawyers set to work. So, we can legally own those things as writers and we can lay claim to putting one note after another in a particular sequence and own it (and defend it in court), so can we do the same with creative production? What if I creatively EQ, fix a specific compression ratio, and pan the guitars hard left and right? Can I own this? Maybe it is no different except that it can’t be policed as well (yet) or maybe it’s that no one cares as much. I should add that we are not advocating a ‘copyleft’ ideology that “seems to argue for the reduction of, or extinguishment, of copyright altogether for an alleged greater cultural good” (Bargfrede 2017, p.xi) or indeed are we affirming the copyright; rather, we are exploring the discourse. Perhaps, to retain our Deleuzian leaning, we should consider ourselves as the copy ‘milieu’ or ‘copymiddle’. The extreme middle, the distance furthest away from the now blunt cutting-edge, is our favoured territory.