By: Brenna Ryder
Singer, Dua Lipa (“Lipa”), was sued twice for copyright infringement for her hit song, “Levitating,” within one week. The first lawsuit was filed in California on behalf of the band Artikal Sound System (“Artikal”), authors and copyright owners of the composition of the 2017 song, “Live Your Life.” The second lawsuit was filed in New York on behalf of L. Russell Brown (“Brown”) and Sandy Linzer (“Linzer”), composers of Cory Daye’s 1979 disco song “Wiggle and Giggle All Night” and the 1980 song “Don Diablo.” Lipa released “Levitating” on her 2020 album Future Nostalgia. Additionally, she later put out a remix of the song featuring rapper, DaBaby. The song peaked at No. 2 on the Billboard Hot 100, but topped the Adult Contemporary, Adult Top 40 and Mainstream Top 40 charts. Additionally, the song was No.1 on Billboard’s Hot 100 Year-End chart and, according to Billboard, is also the longest-running top 10 song by a female artist.
Under the Copyright Act of 1976, copyright protection gives the author “exclusive property rights in the work, such as the sole right to reproduce, adapt, distribute, display and perform the work.” Copyright protects the “expression,” but not the “idea.” One purpose for copyright law is to protect original works of art and to promote the creation of new works. Copyright disputes over music usually involve analyzing the composition of each song and the recording itself. The elements of a song’s composition that are copyright protected include the notes and rhythms used to create the song’s melodies and harmonies, and the lyrics used in the song. The actual recording of the song is governed by a separate set of copyright laws.
To prove copyright infringement, the plaintiff must show: (1) that the defendant had access to the plaintiff’s work, and (2) that the defendant’s work is substantially similar to protected aspects of the plaintiff’s work. This is important because the concept of “substantial similarity” is referenced in both lawsuits. A series of tests are used to determine whether two creations are “substantially similar,” and therefore, that copyright infringement has occurred. Using the extrinsic test, an analysis is done to compare the general ideas. Then, the subjective test compares the protectable elements of those ideas. Consequences of copyright infringement often extend beyond attribution of ownership into monetary damages, causing these lawsuits to be extremely damaging for artists.
Artikal, a Florida reggae band, claims that the defendants–including Lipa, Warner Records, and her co-songwriters and producers–“listened to and copied ‘Live Your Life’ before and during the time when they were writing ‘Levitating.’” The complaint alleges that “Levitating” is substantially similar to “Live Your Life,” Artikal’s song that charted at No. 2 on the Billboard reggae chart in 2017. The complaint, however, does not provide specifics as to how the band believes the song was copied. Artikal will likely have a very hard time meeting the first prong of the copyright infringement test regarding access to the plaintiff’s work. “Live Your Life” is not presently on any major streaming platform, is not Recording Industry Association of America (“RIAA”)-certified, and has a limited number of YouTube plays. This is light distribution and will make it more difficult for Artikal to prove their case. The song had appeared on a variety of streaming services, including Spotify, Pandora, Apple Music, Amazon, and Sound Cloud, but it is unclear if the song was removed from these platforms because the lawsuit was filed.
Lawyers for songwriters Brown and Linzer claim that “the infringing works have compositional elements substantially similar to those of the [Brown and Linzer, or “BL” in the lawsuit] songs.” The complaint further states that, “most significantly, the first and defining melody (the ‘signature melody’) in the infringing works is a duplicate of the opening melody from the BL songs. The signature melody is repeated six times in ‘Levitating’ and three times in ‘Levitating (DaBaby).’” The lawsuit points out that the notes move in the same direction and intervals, with almost identical rhythms. As proof of the infringement, the complaint cites a few examples of music journalists’ reviews and a TikTok video that pointed out the similarities between “Levitating” and “Wiggle and Giggle All Night.” Brown and Linzer also hold the copyright to the 1980 song “Don Diablo” by Miguel Bosé, which infringed on “Wiggle and Giggle.” Furthermore, the lawsuit cites an interview with Lipa where she admits she credited INXS on the Future Nostalgia song “Break My Heart” to avoid potential litigation. The lawsuit also lists DaBaby, Universal Music Group, and the song’s producers and songwriters as defendants. According to the complaint filed by Brown and Linzer, Lipa admitted to drawing inspiration from earlier artists when creating her album, Future Nostalgia, on which “Levitating” appears. Brown and Linzer have a stronger case than Artikal because they provide more evidence as to the similarities between the songs’ compositions.
When arguing musical copyright cases, sound, style, and vibe are of minimal importance while an analysis of a song’s musical composition and recording is most significant. The trend of copyright infringement cases hitting artists will likely not come to an end anytime soon because the differences between plagiarism and inspiration are not very clear. Plaintiffs like Artikal, Brown, and Linzer emphasize the importance of these lawsuits, arguing that artists of today should properly pay homage to the great artists that preceded them. Artists hit with these lawsuits, on the other hand, claim copyright infringement lawsuits are punishing them for lawful inspiration and creation. A delicate balance will need to be met.
Student Bio: Brenna Ryder is a third-year evening student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law. Brenna received a Bachelor of Science Degree in Business Administration and Management, with concentrations in Management Information Systems and Business Law, from Boston University’s Questrom School of Business.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
