Music Mondays – Radiohead to take legal action against Lana Del Rey for copyright infringement

This week Lana Del Rey made headlines when she tweeted that Radiohead was suing her over similarities between her Lust For Life song “Get Free” and group’s 1992 hit “Creep.”

“Although I know my song wasn’t inspired by Creep, Radiohead feel it was and want 100% of the publishing — I offered up to 40 over the last few months but they will only accept 100,” she posted. “Their lawyers have been relentless, so we will deal with it in court.”

The two superstar acts aren’t actually headed to court — at least not yet. Radiohead’s publishing company, Warner/Chappell, soon denied any lawsuit had been filed but confirmed the two camps are in discussions. Often cases such as this are settled in negotiations.

The tracks’ similarities are hard to deny and even if Del Rey claims she “wasn’t inspired” by “Creep,” copyright law is not so simple. As one of modern rock’s most well known songs, if Del Rey really wanted to prove her innocence it comes down to much more than whether she meant to copy “Creep.”

“Intent is not an element to prove copyright infringement, and subconscious copying is nonetheless copying that gives rise to liability,” says attorney Richard Busch, who won the “Blurred Lines” lawsuit on behalf of Marvin Gaye’s family.

He continues, “While independent creation is an affirmative defense, which if proven by the defendant can be a complete defense, the more access to the infringed work that is shown, and the greater the substantial similarity between the two works, the more difficult — if not impossible — that defense becomes.”

Access is often key to copyright infringement suits, requiring proof that the defendant knew the plaintiff’s work. In some cases that unknown acts bring against superstars, that’s easy to prove. But in a case such as this — given the success of “Creep,” a song so popular Radiohead is known for refusing to perform it — it would be more difficult.

“To win on infringement, Radiohead only needs to show that they have a valid copyright in ‘Creep’ and that Lana Del Ray copied original elements of the song,” says Peter Scoolidge of Scoolidge Kleiman LLP. “Copying would generally be shown by evidence that Lana Del Ray had access to ‘Creep’ and that ‘Get Free’ is ‘substantially similar’ to ‘Creep.’ Whether she intended to copy the song is only relevant to impact how much money is awarded against her in damages.”

– Excerpt from article for Billboard by Colin Stutz. See the full article here

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