Lana Del Rey and Radiohead in Copyright Dispute

Originally published at ipharbour.com on January 16, 2018.

On 7 January 2018, US singer Lana Del Rey announced via Twitter that Radiohead were pursuing her for copyright infringement over her song ‘Get Free’ for its similarities to their 1992 hit ‘Creep’. Radiohead’s publishers Warner/Chappell subsequently released a statement confirming they have been in talks with Del Rey’s team since August 2017 but denied that they have initiated any legal action or have demanded 100 per cent of the publishing royalties.They say, “the verses of ‘Get Free’ use musical elements found in the verses of ‘Creep’ and [they have] requested that this be acknowledged in favor of all writers of ‘Creep’.” Lana Del Rey has not yet responded.

Jeff Peretz, a copyright expert speaking to Vulture, thinks that by using hyperbole to draw attention to the dispute, Del Rey is pointing to the absurdity in being sued for a relatively unknown song — most copyright claims are against big hitting singles.

Both publishers have bases in the UK and the US so any lawsuit could proceed in either jurisdiction. In either case, Radiohead must show that Del Rey performed a restricted act which only they are entitled to perform; specifically, that she copied or reproduced ‘Creep’ without their authorisation under either sections 16 of the Copyright, Designs and Patents Act 1988 or 106 of the US Copyright Act 1976.

As in Ultra Marketing v Universal Components (Link) and Three Boys Music v Bolton (Link), in the absence of hard evidence proving direct copying, US and UK courts usually employ the concept of indirect copying and ask whether the defendant had access to the original work; this ought to be easy, given the song’s prominence.

Following the US case of Folio Impressions v Byer California (Link) and the House of Lords case Designers Guild v Russell Williams (Link), in both jurisdictions, once it is established that ‘Creep’ has been copied, the copied elements must relate to a substantial part of the song. In the UK, this is a test of whether ‘Creep’s’ verses contain “the expression of the intellectual creation of the author” as stated in Infopaq International v Danske Dagblades Forening (Link). In the US, as in Folio Impressions, the test is whether an “ordinary observer” can tell that one song was copied from the other.

Turning to the songs, the chord progression uses a minor 4 which is technically out of key and gives each verse that unexpectedly wry turn. This is not automatically protected; however, the minor 4’s relative scarcity in popular music speaks to their likeness. As for timbre, both verses are melancholic in tone and are driven by clean guitar played softly and with ample reverb. This all supports a vocal line which in rhythm, melody and structure is similar.

After the release of ‘Blurred Lines’ in 2015, US Courts ordered Pharrell Williams and Robin Thicke to pay $7.4m to Marvin Gaye’s estate for stealing the groove of ‘Got to Give It Up’. This should concern Del Rey as the similarities between ‘Creep’ and ‘Get Free’ are greater.

There has been no further indication as to where the dispute is heading. Del Rey signed her tweet off with “we will deal with it in court” and Warner/Chappell have not ruled out this possibility, though it seems they would prefer to settle. Michael St. James, a music publisher, said in Esquire “Publishers… try and settle on a writer’s share agreement … to in effect give writer’s credit and a percent of the publishing.”

It is usual for publishers to seek a portion of the publishing revenue, and Radiohead’s representative may well push this agenda. After all, Radiohead were sued by Albert Hammond and Mike Hazlewood for copying the verses of ‘The Air That I Breathe’ in ‘Creep’. They too would likely be entitled to any publishing royalties received from ‘Get Free’.

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Originally published at ipharbour.com on January 16, 2018.