No Surprises & Fair Use
by Robert Dorneanu
Does Eviatar Banai’s New Video Clip Infringe Upon Radiohead’s Copyright?
Eviatar Banai, one of Israel’s most beloved Israeli singer-songwriters, just released his latest video “Rachamim” reflecting his family’s humble beginnings in Israel as Iranian immigrants, his life choices and his journey to self-discovery.
Banai’s lyrics as well as visuals pay tribute to his major influences along his journey such as a homage to Radiohead’s “No Surprises” video clip. In the original 1997 video, taken from the iconic “Ok Computer” album, Thom Yorke sings inside a diving helmet while it fills up with water. In “Rachamim” Banai recreates the same image with himself instead of Yorke. In another homage, we can see Banai as a cartoon character on the set of The Simpsons tv show while mentioning “Bart & Lisa” in his lyrics.
Assuming Banai did not receive authorization to include these images in his video would they be considered copyright infringements according to Israeli law? Can Radiohead file a lawsuit in Israel and prevail?
Several possible causes of action are available to Radiohead under Israeli law: Copyright infringement, the tort of Passing Off and Unjust Enrichment.
Copyright law protects the fixation of an idea and not the idea itself. Banai takes the main concept of the “No Surprises” video, but did he also copy the fixation of the idea, the expression, which is protected under the scope of copyright law? I doubt it.
Let’s zoom in: through the lyrics, Banai reflects on the way he alienated himself from his roots and replaced them with Bart and Lisa Simpson, Johnny Depp and Juliette Lewis. At this point in the clip, short take offs on Radiohead and The Simpsons are shown. From the copyright law point of view, it is important to note that Banai is not copying the Radiohead clip as such but rather reenacts it. Banai puts himself in the place of Thom Yorke and sings his own original lyrics.
As shown in the images above, Banai clearly copied a specific visual from the Radiohead clip. This was clearly done for artistic purposes. This is where the Fair Use doctrine kicks in. Copyright is not an absolute right. The law balances the interest of the copyright holder with the interest of the public: freedom of expression, the distribution of ideas and creative work.
Can Banai’s homage qualify for the Fair Use defense under Israeli copyright law? Banai makes a deliberate artistic choice to visualize his lyrics and the influence Radiohead had on him. The purpose of the use, the fact that Banai recreates the visual rather than using it as is, the way he uses only short bits intended to reflect the lyrics and the insignificant impact on the market value of the “No Surprises” video, may support the claim that Banai’s use of this visual is permitted under the Fair Use doctrine.
The Tort of Passing Off
In order to prove Passing Off one must prove goodwill and consumer confusion. Radiohead are one of the most famous bands in the world and in Israel specifically. Israelis love to brag that “Creep” became a major hit after being played over and over by local radio DJ Yoav Kutner in the GLZ radio station. Is the “No Surprises” video well known in Israel? In my opinion, No Surprises is not well known enough to the relevant Israeli audience. I assume only a few music fanatics may recognize the reference, since the visual is only one of many in the clip and as Radiohead are not even mentioned in the lyrics.
Consumer confusion is not to be found. No one would mistake Banai’s clip as being of Radiohead or connected with them.
What about unjust enrichment? Plaintiffs will be required to prove that (1) Banai was enriched or otherwise benefited (2) at Radiohead’s expense and (3) without a lawful right.
Even if one assumes that Banai profits from his clip, it is farfetched to attribute this enrichment in any way to Radiohead.
Behind the Legal Scenes
Radiohead’s approach to the music industry and to copyright enforcement is non-conventional. A few weeks ago, Thom Yorke’s minidiscs (!) from the “Ok Computer” era were stolen and ransom was demanded. The group took an unusual step and released for sale on the internet the music from these minidiscs. More than 18 hours of music! I admit that even I did not have the time to listen to it all.
Radiohead do not hesitate to act against what they see as copyright infringement. A year ago, they approached Lana del Rey after one of her songs was too similar to Creep. Lana del Rey even tweeted that Radiohead’s lawyers were relentless in their attitude J. It ended in a settlement.
Another angle: Radiohead’s Jonny Greenwood is married to an Israeli born artist and is well familiar with the Israeli music scene. In fact, Israeli musician Dudu Tassa opened for Radiohead in their last American tour. I like the idea that Greenwood is familiar with Eviatar Banai’s work. I believe he may appreciate the tribute. Will this affect the decision to take legal actions against Banai?
Will Radiohead take legal action? I guess we’ll need to wait and see…..
“Rachamim” video by Eviatar Banai & Tamir Muskat. Director: Asaf Korman
No Surprises by Radiohead:
For advanced viewers – “The most miserable song or tune I ever heard”:
Legal disclaimers: I must have listened to Banai’s first album thousands of times. Radiohead is my favorite band.