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. She spoke further about the situation at a concert in Denver Sunday.
While Radiohead has not commented directly, Variety received a statement from the band’s publisher, Warner/Chappell Music.
“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,” the statement reads. “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 favor of all writers of Creep.’
“To set the record straight,” the statement continues, “no lawsuit has been issued and Radiohead have not said they ‘will only accept 100 %’ of the publishing of ‘Get Free’.”
A rep for Del Rey did not immediately respond to Variety‘s request for comment.
Radiohead were themselves sued by songwriters Albert Hammond and Mike Hazlewood over similarities between “Creep” and their composition “The Air That I Breathe,” which was a hit for the Hollies in 1974. Ultimately the case was settled and pair were given co-writing credits on the song.
Several attorneys who specialize in music-copyright law told Variety on Monday that Radiohead has a strong argument that “Get Free” infringes on “Creep.” 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.”
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.”
“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.”
Going before a jury is a risky gamble, as proven by the outcome of the “Blurred Lines” case, in which the writers of that song, Robin Thicke and Pharrell Williams, were sued by Marvin Gaye’s estate and found liable in March 2015 for copyright infringement for similarities with Gaye’s 1977 song “Got to Give It Up.” In July of that year the jury’s award was reduced from $7.3 million to $5.3 million, although Thicke and Williams’ request for a new trial was denied.
The case had a profound effect on the music industry, as evidenced by settlements involving similarities between Sam Smith’s 2014 hit “Stay With Me” and Tom Petty’s 1990 song “I Won’t Back Down,” the writers of TLC’s 1999 hit “No Scrubs” being added to the credits of Ed Sheeran’s “Shape of You,” and lawsuits involving the credits for Mark Ronson’s 2014 hit collaboration with Bruno Mars, “Uptown Funk,” which saw members of the Gap Band being added to the credits. Late last month Ronson was sued by the rights-holders of Zapp’s 1980 “More Bounce to the Ounce” over similarities between that song and “Uptown Funk.”