Radiohead versus Lana Del Rey

Did she or didn’t she?

On January 7, Lana Del Rey confirmed on Twitter that Radiohead has sued her for copyright infringement because of the similarities between her song “Get Free” (released in 2017) and Radiohead’s “Creep” (released in 1993).

She tweeted, “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.”

At issue are similarities between the chord progressions in both songs (although the lyrical content is not a matter of dispute):

According to attorneys quoted in a Variety article, Radiohead has the upper hand in the argument for two reasons:

• The songs sound too similar. As Bill Hochberg, an attorney at Greenberg Glusker, said, “I would say this case does cross the line. This Lana Del Rey song is way too close to what is a rather unusual set of chord changes and a very distinctive melody line.”
• Lana Del Rey’s willingness to offer up to 40 percent of the publishing revenues out of court suggests she recognizes that the songs are too similar. “I don’t think you would offer 40% of your publishing if you believed the claim was frivolous,” said James Sammataro, an attorney at Stroock & Stroock & Lavan.

But anything can happen when music copyright cases are decided by a jury of everyday people, especially when the dispute occurs over something as subjective as the way a song sounds as opposed to the lyrics used. Case in point: Led Zeppelin. Throughout Led Zeppelin’s storied history, the band has occasionally needed to pay up for copyright infringement due to lyrical content. But when Led Zeppelin famously faced a copyright lawsuit based on the musical similarities between “Stairway to Heaven” and the song “Taurus,” Led Zeppelin prevailed.

With the “Stairway to Heaven” lawsuit, it didn’t matter how similar the songs sounded to attorneys and musicologists although attorneys and musicologists certainly shared their opinions in court. What mattered was what a jury of eight people thought. Commenting on the Led Zeppelin case at the time, blogger Bob Lefsetz wrote, “That’s what it’s come down to, eight nobodies weighing in on the provenance of rock and roll.”

If the Radiohead/Lana Del Rey goes to trial, once again the decision will come down to a jury. And Lana Del Rey could beat Radiohead despite the obvious similarities between “Creep” and “Get Free.” Her argument will likely rely on two crucial factors:

• Whether the chord progressions used in both songs are commonly used in other songs. One of the reasons Led Zeppelin successfully defended itself in the plagiarism lawsuit over “Stairway to Heaven” was that the band’s legal counsel argued that “Stairway” is based on common chord progressions that date back to the 17th Century and can be heard in songs such as the Beatles’ “Michelle.” It’s worth noting that the Hollies successfully sued Radiohead over similarities between “Creep” and the Hollies’ “The Air That I Breathe,” which adds an ironic twist that could help Lana Del Rey. She will need the help of an expert who can demonstrate similarities between both “Creep,” “Get Free,” and other songs.
• How integral is the music to the entire song? Does the entire song “Get Free” sound too similar to “Creep,” or are we talking about a passing resemblance? In the case of the Hollies suing Radiohead, at issue was the overall similarity between the two songs’ compositions. Similarly, in 2015, the family of Marvin Gaye successfully sued Robin Thicke and Pharrell Williams for infringing upon Gaye’s “Got to Give It Up” when Thicke and Williams wrote “Blurred Lines.” The recurring backbeat and chorus that underpin both songs were deemed to be too similar. In the case of “Get Free” and “Creep,” Team Lana Del Rey could argue that the disputed chord progressions are not integral to the entire song. (Remember, we’re talking about subjective opinions here. What I hear may not be the same as what you or, more importantly, what a jury hears.)

And then there is the X factor. If the musicians actually appear in court to testify about the writing of their songs, how will they come across? Will either side charm the juries or alienate them? If I had to bet on which side will lay on more charm, I’d place all my money on Lana Del Rey as opposed to the enigmatic members of Radiohead.

Ultimately, if the case continues to court, a jury of everyday people like you and me will decide. And anything goes.