"Intent is not an element to prove copyright infringement, and subconscious copying is nonetheless copying that gives rise to liability," says attorney Richard Busch.
“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, as well as that the band is insisting on 100 percent of the publishing rights, 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."
Cases such as this touch on an intrinsic issue with music copyright: There are only eight notes in an octave and so many ways to use them in contemporary popular music. At a certain point, songwriter is bound to replicate what another person has done before. But the issue of creating something "new" is not actually at play here. "Copyright law is not about novelty," says Cardozo School of Law professor Christopher Buccafusco, "it's just about coming to something on your own."
Buccafusco cites an example given in a famous copyright opinion that if someone today were to write word-for-word John Keats' poem "Ode on a Grecian Urn," never having read it before, he or she would not be an infringer (and in addition would have a copyright on it). "Copyright law, at least ostensibly, takes very seriously this notion of independent creation, and so it will be incumbent upon Radiohead if this goes to litigation or as they think about the relative value of the lawsuit in settlement negotiations, the probability that Radiohead will actually be able to prove that Lana Del Rey copied from them and didn't just on her own hit upon this collection of melodies and chords."
Interestingly, Radiohead has been on the other end of this situation with "Creep" before when the band was accused of plagiarizing the song "The Air That I Breathe," which was made famous by The Hollies and written by Albert Hammond and Mike Hazlewood. Hammond and Halewood sued and are now credited songwriters for "Creep," making them invested parties in this case as well.
"It's now Radiohead's responsibility to be able to point to the fact that not only did Lana Del Rey have access to their work, that's pretty clear, but there's a reason we should think the similarity in Lana Del Rey's work came from her in fact copying their song," says Buccafusco. "It doesn't mean that she had to do it intentionally or willfully, it just means that more probably than not when she was putting together this music, somehow somewhere she was generating, she was thinking about, she was developing from her knowledge of the Radiohead song and this can happen subconsciously."