Lana Del Rey, Radiohead, and the Difficulty of Making Original Music

On Sunday, the singer Lana Del Rey suggested, via Twitter, that she was being sued by Radiohead for copyright infringement over supposed similarities between her “Get Free” and their “Creep.” “It’s true about the lawsuit,” she wrote. “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. Their lawyers have been relentless, so we will deal with it in court.”

From the start, Del Rey’s announcement felt fishy. “Inspired by” is awfully gentle language to describe a plagiarism allegation, and besides, Radiohead already

conceded partial songwriting credit on “Creep” to Mike Hazlewood and Albert Hammond—years ago, a judge found that “Creep” too closely echoes “The Air That I Breathe,” a hit Hazelwood and Hammond wrote for the Hollies, in 1974—meaning the band itself doesn’t even control the whole of its publishing. Eventually, Warner/Chappell*, Radiohead’s label at the time of the song’s release, refuted her claim: “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,’ ” the company said in a statement. “To set the record straight, no lawsuit has been issued and Radiohead have not said they ‘will only accept 100%’ of the publishing of ‘Get Free.’ ”

Does “Get Free” plainly resemble “Creep” more than “Creep” plainly resembles “The Air That I Breathe”? Probably? If you think about it for too long, the question itself begins to feel paradoxical. They are all the same song; they are all different songs. What’s fair from a legal position—how many permutations within a finite range of musical notes can we expect to organically repeat?—is, as ever, comically unclear. Intellectual property should be protected—an artist’s work has no less proprietary value than a corporation’s, and of course it deserves strident safeguarding. Yet there is always a degree of absurdity to these disputes, which, independent of direct and objective mimicry, tend to be predicated on interpretive leaps—on sniffing out what a song “feels” like, and whether or not that feel has been repurposed egregiously.

The fundamental instability of that math could, eventually, necessitate an entire rethinking of the creative process. The situation has felt especially dire in the wake of a now infamous lawsuit, in 2013, over Robin Thicke’s colossal hit “Blurred Lines,” which a jury found too derivative of Marvin Gaye’s “Got To Give it Up”—despite nary an overlapping chord progression.

Given the often slapdash and inscrutable way that art gets made (a lot of stuff goes in, something comes out), the “Blurred Lines” verdict rattled musicians, who, like all writers, tend to scavenge in obvious and less obvious ways: we are all informed, to some an extent, by what we consume. In 2016, two hundred and twelve artists—including Jennifer Hudson, Jean Baptiste, the producer Danger Mouse, members of Earth, Wind & Fire, Tool, Fall Out Boy, Train, Weezer, Hall & Oates, and others—filed an amicus brief in support of an effort to overturn the $5.3 million judgment against Thicke and his co-writers. “Such a result, if allowed to stand, is very dangerous to the music community, is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well,” the brief claimed. “One can only imagine what our music would have sounded like if David Bowie would have been afraid to draw from Shirley Bassey, or if the Beatles would have been afraid to draw from Chuck Berry, or if Elton John would have been afraid to draw from the Beatles, or if Elvis Presley would have been afraid to draw from his many influences.”

A few days before Del Rey’s tweet, a less-publicized—but no less fascinating—copyright predicament was also being investigated. Sebastian Tomczak, an electronic musician from Australia, uploaded a ten-hour white-noise video to YouTube, and was promptly walloped with five infringement claims. YouTube’s automated Content ID system scans all uploaded videos against a database of copyrighted material; any overlapping content is flagged. When a supposed infringement is detected, the copyright owner can either have the video removed, or allow it to remain, and automatically garnish any advertising revenue that it might generate.

White noise is generally defined by hazy and inharmonious hissing—it’s noise-eating noise, anti-noise, a way of drowning out other sounds. Per a BBC report, the claimants accusing Tomczak of infringement included companies who peddle white-noise recordings as sleep therapy. It turns out that his nondescript hissing mirrored their nondescript hissing. (Following the BBC’s report, all of the claims were dropped.)

We’re situated at a complex nexus—more raw material is available to more people than at any other point in human history, yet there’s increasing bewilderment about what constitutes actual infringement. (There are also plenty of lingering, non-legal concerns about what sorts of cultural boundaries can or should be crossed, and how, and why, and by whom.) One potential byproduct of the lawsuit panic—and I stand with the musicians protesting the “Blurred Lines” settlement as unreasonable—is that there’s more incentive to throw precedent to the wind, and to imagine wild new modes. Yet there’s something lovely and comforting about the continuum—about art begetting art, about a pulse traveling down a line. The interconnections and overlaps are evidence of a mysterious symbiosis, a hand in the dark, a history. Can something come from nothing? The bigger question may be whether we want it to.