To win a copyright infringement suit, the band’s lawyers would have to persuade a jury that Del Rey’s song is “substantially similar” to “Creep,” both qualitatively and quantitatively.
“I would say this case does cross the line,” said Bill Hochberg, an attorney at Greenberg Glusker. “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.”
Del Rey revealed the dispute in a tweet on Sunday, saying that Radiohead has demanded 100% of the publishing revenues from the song. She said that while her song “wasn’t inspired by Creep,” she has offered up to 40% of the publishing to settle the matter.
Typically in such disputes, the attorneys will communicate and try to reach a settlement without filing a lawsuit. Prior to litigation, both sides may also engage their own musicologists to study the similarities between the two compositions. Two songs may sound similar to the untrained ear, but a musicologist may be able to show that the similarities are trivial or commonplace.
“Musicologists are very good at showing where the note sequence is used in other songs and works going back to the Renaissance,” said Henry Gradstein, of Gradstein & Marzano. “Typically what sells it is where there’s a unique pattern of notes and keys and chords and rhythms.”
Asked about the similarities between the songs, Gradstein played them on his computer. “There’s some changes that sound pretty similar,” he said. “I get it. I get the case now.”
Gradstein thought it was notable that Del Rey offered 40% of her publishing rights, suggesting she may have gotten a musicologist’s report suggesting significant similarities.
“I don’t think you would offer 40% of your publishing if you believed the claim was frivolous,” agreed James Sammataro, an attorney at Stroock & Stroock & Lavan.
If the two sides cannot reach a resolution, Radiohead would file a copyright suit in federal court, and Del Rey’s attorneys would file a motion to dismiss. Sammataro said Radiohead would likely prevail on that motion. If the case reached a trial, both sides would bring their experts. Ultimately, it would be up to the jurors’ subjective assessment of “similarity.”
“It can get very complicated,” Hochberg said. “It can really pull the wool over somebody’s ears.”