2018 has kicked off with a bang after Lana Del Rey posted a rather direct tweet regarding her song ‘Get Free’ off of her latest album Lust for Life, and what could have been a potential lawsuit between her and 90s alternative giants Radiohead.
Radiohead’s publishers have recently spoken out saying that whilst they are in talks, Radiohead are not suing Lana Del Rey for publishing rights, but how credible would a lawsuit from Radiohead be? Could they sue and have a strong case for it?
Fans of Radiohead will already be aware of the controversy that surrounds Creep dating back to its release and a previous connection and lawsuit with 1972 Hollies tunes ‘The Air That I Breathe’. In what seems like an age-old argument, the songs similarly use the same chord progressions throughout the verses.
To a songwriting geek, the chord progression is iconic as it gives off a rather ambiguous sound, ascending the major scale, and then changing the major fourth to a minor fourth.
The result of the lawsuit was that Mike Hazlewood and Albert Hammond were credited as songwriters. However, the actual chord progression is about as far as similarities go between the 90s anthem Creep and the ’72 Hollies track, they do not share similar vocal melodies, they do not share choruses and textures are horrendously far apart.
But how does Lana Del Rey’s song ‘Get Free’ hold up against Radiohead? Well, it’s quite obvious upon listening how much the song borrows from Radiohead.
Firstly, both chord progressions are the same – Radiohead has little claim to this due to how they too borrowed the same chord progression from another. However, both chord progressions are played in a strikingly similar manner, it follows the same timbre and leads to a crescendo. It's something that Radiohead at least managed to differentiate in their arrangement.
The vocal melody to ‘Creep’ is crafted in a way so that it attaches to the chord progression and somewhat follows it, which was different to the Hollies tune where the vocal melody and the chord progression has very little-to-no connection. However, it’s fairly audible that Lana Del Rey has taken the exact vocal melody that Radiohead has used in their tune and has only changed the lyrical content.
You could call the first minute and twenty-four seconds of ‘Get Free’ a ‘Creep’ remix, as both songs almost perfectly match up, give or take a few very minuscule dynamic and textural differences.
‘Get Free’ diverts after what is essentially the first verse and chorus to ‘Creep’ and goes into its own chorus which does not take from Creep whatsoever and offers some form of originality within the track.
On the grounds that it is fairly obvious to any unbiased listener why Radiohead might want to sue Lana Del Rey, would this so far be substantial enough for Radiohead to claim 100% of the publishing rights?
Not entirely, where music publishing rights become a little awkward is determining whether the recording is allosonic or autosonic, which essentially means whether the attribute that was taken was ripped directly from the recording or whether it was imitated and reproduced.
Lana Del Rey could authentically argue that the music that has been released under her name is almost completely original as they have not used any of the recordings or instrumentation that Radiohead have used, essentially making is almost completely original. To simplify it even further; no-one owns the chords, the progression or the textures that Radiohead or The Hollies have used and therefore the arrangement itself isn’t viable to be copyrighted. This would essentially allow Lana Del Rey to keep 100% of the rights to her song, despite what could be some sort of mimicry.
There can be exceptions, granted if Lana Del Rey literally re-recorded creep then the songwriting rights would go directly to Radiohead. However, if there are any subtle changes to the progression, even slightly subtle, then it could hinder Radiohead’s claim to those rights. Upon first listen it’s clear that ‘Get Free’ is an allosonic reproduction of Radiohead’s ‘Creep’ and therefore the song itself is not entirely at risk of legal action.
Another famous case for this is the 1997 song ‘Bittersweet Symphony’ by the Verve, where the Rolling Stones managed to take 100% of the rights to the song off of the Verve, effectively taking ownership away from the band.
This was all due to the string section iconic to the Verve and has very little association with the Stones; apart from one orchestral arrangement by Andrew Loog Oldham of their track ‘The Last Time’. The Verve used an autosonic sample of the rearrangement (taking an already recorded segment of a song and adding into their own work), landing them a fairly hefty and controversial lawsuit.
All we can do at the moment is wait and see if Radiohead or their publishers take any legal action against Lana Del Rey and her publishers... or see if this was a coordinated publicity stunt to add some controversy to Lana’s latest album.
Take a listen for yourself!