Dua Lipa “Levitating” Through Two Copyright Lawsuits

Dua Lipa “Levitating” Through Two Copyright Lawsuits

British pop sensation Dua Lipa released her second studio album, “Future Nostalgia” in 2020.^[1] Since then, she has been hit with not one, but two lawsuits from different record labels claiming that her smash hit “Levitating” infringes on copyrights owned these labels.^[2] Levitating is one of Dua Lipa’s hit songs, at times climbing to the No. 2 spot on Billboard’s Hot 100.^[3]

The first lawsuit against Lipa and her record company, Warner Records, was filed by representatives on behalf of Florida Reggae band Artikal Sound System in the Central District of California.^[4] Artikal Sound System claims that Lipa’s “Levitating” is substantially similar to their 2017 song, “Live Your Life.”^[5] Substantial similarity is a standard under which the court will analyze the works.

The second lawsuit against Lipa and Warner Records was filed by Larball Publishing Company (“Larball”) and Sandy Linzer Productions (“Linzer”) in the Southern District of New York.^[6] Larball and Linzer claim that “Levitating” is substantially similar to their song “Wiggle and Giggle All Night,” and another song, “Don Diablo,” to which Larball and Linzer now own the copyright after its own infringement suit.^[7] “Wiggle and Giggle All Night” and “Don Diablo” both use what Larbell and Sandy refer to as a “signature” melody from the 1980s, a melody they claim “Levitating” also uses.^[8]

Content creator Jarred Jermaine uploaded this^[9] video which showcases all the songs involved in both the first and second lawsuits.

Absent proof of direct copying, the plaintiffs will have to satisfy a two-part test (1) showing that Lipa had “‘access to the plaintiff’s work” and (2) that the works are “substantially similar.”^[10]

To satisfy the first part of the test, plaintiffs will have to prove that Lipa had “an opportunity to view or to copy plaintiff’s work;” this is further described as a “reasonable opportunity” or “reasonable possibility” of viewing the plaintiff’s work(s).^[11] One way to show access is to show that “the plaintiff’s work has been widely disseminated.”^[12] Courts do vary on the matter, but generally, when determining if a work has been ‘widely disseminated’ courts consider “the degree of a work’s commercial success and . . . its distribution through radio, television, and other relevant mediums.”^[13] Artikal Sound System and Larball will probably have to prove access through the wide dissemination of their songs. It is important to note that the more similar two works are, to the point that they are “strikingly similar,” proof of access is not as necessary to find copyright infringement.^[14]

For the second factor of the two-part test, Artikal Sound System and Larball will have to argue that “Levitating” is “substantially similar to their songs.” Substantial similarity is analyzed differently in California and New York, with California in the Ninth Circuit and New York in the Second.^[15]

In the Ninth Circuit, substantial similarity breaks down into its own two-part test; proving extrinsic similarity and intrinsic similarity.^[16] The extrinsic test identifies concrete elements of similarity that are often shown through an “analytical dissection of a work and expert testimony.”^[17] The intrinsic test is subjective and asks “whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.”^[18] 

The Second Circuit, however, uses the “ordinary observer test” when determining substantial similarity.^[19] The ordinary observer test “queries whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”^[20]

In analyzing “substantial similarity,” Artikal Sound System and Larball might bring in music theorists as experts to explain the similarities that exist. Lipa and Warner Records may also bring in their own expert to argue that the extrinsic test is not satisfied. Expert analysis might look something like what was done here^[21] by independent music theorist Adam Neely. The intrinsic test will be a question for the jury, so would you, as an ordinary reasonable person, say that the songs are substantially similar?

In their complaint, Larball already provided evidence as to the “substantial similarity” of the songs by providing a transcription analysis of all three songs (“Don Diable” is noted as DD, “Levitating” is LEV, and “Wiggle and Giggle All Night” is WG).^[22]

An ordinary person could find similarities between all the songs involved; the question is, is this copyright infringement? Given that we are analyzing four songs that sound quite similar, Dua Lipa and Warner Records could argue that the melodies and chord loop used in the songs are just popular, and not copyrightable. This argument could be strengthened by the fact that there is a fifth song that exists outside of these lawsuits that sounds similar to the rest. Using a similar melody and chord loop, “Rose Parks” by OutKast released in 1998, which you can listen to here,^[23] adds an interesting element to these lawsuits.^[24]

Overall, Dua Lipa, Warner Records, and the teams they put together probably face a long process if they choose to defend “Levitating” against copyright infringement, but we eagerly await the results of these cases.