Rock band, Radiohead, are reportedly in the process of bringing an action against singer, Lana Del Ray, for copyright infringement of their song Creep. The reported claim is that her song Get Free is allegedly sufficiently similar to Creep to entitle Radiohead to 100% of the royalties.

Copyright battles between musicians are not uncommon and it is understood that the same Radiohead song has, in turn, been the subject of similar accusations relating to a prior song performed by the Hollies, The Air That I Breathe. The claim apparently resulted in Radiohead sharing the song’s royalties with two parties, who were also included on the song’s credits.

In light of such a high profile matter, this note explores what copyright is, how it arises and the protection it affords copyright owners.

What is copyright?

Copyright is a proprietary right that arises automatically on the creation of certain works. Copyright protects:

  • Original literary, musical, dramatic or artistic works (including any graphic images)
  • Sound recordings, films or broadcasts
  • Typographical arrangements of published editions

How does copyright arise and who does it vest in?

Copyright arises automatically when a work is created and will usually be owned by the person who creates the work in question. Unlike some other intellectual property rights, it cannot be registered and there is no register of copyrighted works.

Circumstances where another party will hold the copyright include:

  • If an author of a work is an employee and creates the work in the course of their employment, the right will belong to the creator’s employer.
  • If works are created for business purposes. For example where an advertisement containing a graphic image is designed for a party under contract, the copyright will only belong to the party commissioning the works if the copyright is legally assigned. However, it is worth noting that a licence will be implied to allow the commissioning business to use the works for the purposes for which the works were commissioned.
  • Copyright can be held jointly where a work is created by more than one person. This is often the case in music where copyright of a recorded song may be owned by the producer and the artist and any contributing musicians.

What protection does copyright provide?

Aside from in certain circumstances, such as where a work is being used for private study, the owner of material protected by copyright will be able to prevent other parties from using or copying it without their consent.

Copyright protection lasts for different amounts of time depending on the work protected. Broadly speaking, for literary, dramatic, musical or artistic works, protection is afforded for the lifetime of the author plus 70 years after death. Sound recordings are protected for 50 years, films for 70 years and copyright in published works for 25 years.

Copyright infringement generally occurs where, as the claim is purported to allege in the Radiohead case, works are copied or, separately, where works are distributed without the owner’s consent. It is important that those using copyrighted material for commercial purposes attain the permission of the copyright owner before doing so and parties who own works protected by copyright ensure that others using the material are doing so under licence.