Lana Del Rey, Radiohead and Copyright

American singer-songwriter Lana Del Rey (aka Elizabeth Woolridge Grant) has tweeted that she’s being sued by English rock band Radiohead over similarities between Get Free (2017), the final song on her fifth studio album Lust for Life, and their iconic song Creep (1992). [Listen to a comparison here]

On stage in Denver on 7 January 2018, Lana told audiences that the song was her ‘personal manifesto’ and that the lawsuit could result in it being removed from her album Lust for Life. 

Get Free is currently credited with Lana Del Rey, Kieron Menzies and Rick Nowels as co-writers.

At this stage there is no evidence that a formal lawsuit has been filed, if so who filed it (members of Radiohead including lead singer Thom Yorke who wrote the song, or their publishers Warner/Chappell), and importantly what aspects of Get Free Radiohead claim have infringed upon their copyright. A spokesperson from Warner/Chappell has denied the existence of a lawsuit but admitted to being in discussions.

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.”

If they were to sue, in order to succeed Radiohead would need to show that Lana had access to their song and that there is a “substantial similarity” between the two songs as determined by an “ordinary observer” (most likely a jury). In determining substantial similarity we look at the quality, not quantity and there is no simple rule of thumb – each case will be different.

Similarities seem to be in the verse including the chord progression (I – III – IV – iv or G – B – C – Cm), vocal melody, tempo and structure. On the other hand the lyrics and choruses are very different. In my view there are insufficient grounds to warrant 100% royalties to Radiohead but 40% is probably justified.

Interestingly,  Radiohead were previously sued over Creep by The Hollies‘ Albert Hammond and Mike Hazlewood who claimed that it resembled The Air That I Breathe (1972). After settling out of court Hammond and Hazlewood are now credited as co-writers for the song and receive a share of royalties.

Far from the first case of this kind…

  • In 2016 Ed Sheeran was sued over similarities between his song Photograph and X Factor winner Matt Cardle‘s Amazing (written by Martin Harrington and Thomas Leonard). The lawsuit was settled privately in April 2017 with no admission of guilt and Harrington and Leonard being given co-writer credits.
  • In 2015 Robin Thicke, TI and Pharrell Williams were sued for copyright infringement by the estate of Marvin Gaye for similarities between their hit song Blurred Lines and Marvin Gaye’s Got To Give It Up (1977). Ultimately TI was cleared but a Los Angeles jury found Thicke and Williams guilty of unlawfully copying and Gaye was given credit as a songwriter, $5.3 million and 50% of the song’s future royalties. Interestingly (and potentially setting a dangerous legal precedent), in this case the melody and lyrics were not remarkably similar and instead it was “the vibe” including studio arrangements such as background chatter and even a cowbell that were taken into consideration. It’s worth noting that this case is slightly unusual in that it was litigated only based on the sheet music (not the sound recording) because in the 1970’s sound recordings weren’t protected under copyright law. The jury heard evidence about the sheet music from musicologists and never actually heard Gaye’s original recording. The case has now been appealed to the 9th Circuit Court of Appeal. No doubt this will be an important decision for the entire industry.
  • In 2014 Sam Smith was sued over his hit song Stay With Me (2014) and its similarities to I Won’t Back Down (1989) by Tom Petty and the Heartbreakers. Settled without fanfare and in private, Petty and Jeff Lynne were credited as co-writers and awarded royalties.
  • In contrast, in 2016 Led Zeppelin successfully defended a copyright lawsuit against the estate of Randy Craig Wolfe of Spirit who claimed that Stairway to Heaven plagiarised the intro from Taurus (1968). Zeppelin showed that the disputed chord progression (including a descending chromatic line) was a common building block of classical and popular music dating back centuries (even used in Chim Chim Cher-ee from Mary Poppins).
  • In Australia in 2010 we saw Aussie rock band Men at Work found by the Federal Court to have infringed copyright in their hit song Down Under (1980) because the flute riff was copied from the 1934 folk song Kookaburra Sits in the Old Gum Tree. Larrikin Music Publishing who own the rights to the song (obtained from Marion Sinclair) succeeded in convincing the court that it was a sufficiently substantial part of the original song that had been used. They were awarded 5% of Down Under’s royalties from 2002 onwards. The comparison between the two songs only came about in 2007 following an episode of Spicks and Specks.

Advances in technology have played a large part in the recent surge in lawsuits. We can now use the internet to closely analyse and compare songs. At the same time the internet has made it easier than ever for anyone to access troves of ‘inspiration’ in the form of other people’s music and potentially ‘subconsciously’ plagiarise (see George Harrison v The Chiffons). This along with decreasing traditional revenue sources (i.e. CD sales), it appears that this is just the beginning of what could be waves of litigation to come.

You can catch my interview with Josh Zepps on ABC Breakfast Radio on Thurs 11 Jan 2018 here: http://www.abc.net.au/radio/sydney/programs/breakfast/breakfast/9305428 (skip ahead to about 1:49 for the start of the interview).

This post was last updated on 11/01/18.

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