Radiohead is suing Lana Del Rey for copyright. How can the jury tell?

English rock band Radiohead is reportedly planning to sue American pop star Lana Del Rey for copyright infringement, from similarities between Del Rey’s 2017 song “Get Free” and Radiohead’s breakthrough 1992 single “Creep.” In a tweet, Del Rey confirmed that Radiohead had refused a settlement offer, and are seeking her profits. Compare “Creep” and “Get Free” on YouTube. (Content warning: profane lyrics.)

Copyright for a work of music covers both the music itself and the lyrics.[1] Radiohead is suing for infringement of their musical composition, specifically arguing that the rhythm, melody, and harmony of the verse of “Get Free” copy the verse of “Creep.”

To prevail, Radiohead must prove that (1) it owns a valid copyright for “Creep” and (2) Lana Del Rey copied “Creep.”  To prove copying, Radiohead will require admissions or testimony that Del Rey had (1) “access” to “Creep” when she created “Get Free”[2] and (2) the works are “substantially similar.” Mere commonalities are not enough; the jury must be able to infer that Lana Del Rey had heard “Creep” and actually copied protected elements from it.

Access is proven by direct or indirect evidence, such as witness testimony, evidence of a relationship between the artists, evidence that the copyrighted work is well-known, or evidence that the works are so similar that the infringer must have had access to the copyrighted work.[3]

To prove “substantial similarity,” Radiohead will try to establish that Del Rey copied “Creep” such that an “ordinary observer” can tell that one song was copied from the other. With regard to musical works, courts have accepted many musical elements when comparing two works for similarities, including melody, harmony, rhythm, pitch, tempo, phrasing, timbre, new technology, spatial organization, bass lines, overall structure, and more.[4] Melody, harmony, and rhythm are typically the most important. The more elements in common, the more likely Radiohead will prevail. Another way of establishing “substantial similarity” is by “total concept and feel,” which is a less reductionist and “scientific,” and sometimes controversial, way to compare works.

Proving substantial similarity in court is complicated, though. Artists’ songs typically carry two copyrights: for the composition and for the audio recording. Radiohead is accusing Lana Del Rey of infringing their composition, not their recording—she did not publish a copy of Radiohead’s 1992 recording. The audio recording can help the jury assess the music composition, but there are complications: often, the recording carries additional elements beyond what’s on the written page, and sometimes contains unprotected elements such as background samples of public domain music. In such cases, jurors might only be permitted to hear stripped down audio recordings that contain only copyright-protected elements.

It is likely that most jurors cannot read sheet music and do not have knowledge of music theory. Therefore, musicologists are often called as expert witnesses to analyze the compositions, and walk jurors through sheet music.

Ultimately, it is up to the jury to decide whether the works are substantially similar, and juries are unpredictable. Most of these cases settle long before a jury verdict, which is probably what will happen between Radiohead and Lana Del Rey. Still, the likelihood of prevailing at trial will affect the parties’ settlement negotiations.

What do you think? Do the songs sound substantially similar?

[1] 17 U.S.C. § 106.

[2] See e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000).

[3] See, e.g., Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988).

[4] See, e.g., Swirsky v. Carey, 376 F.3d 841, 849 (9th Cir. 2004).

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