Saisha Mediratta
In the latest series of musical artists getting sued under copyright, two complaints have recently been filed against Dua Lipa regarding her song, “Levitating.” The first complaint filed in the Central District of California (hereinafter “Complaint 1”) alleges that Dua Lipa copied regae band Artikal Sound Group’s 2017 song, “Live Your Life.”[1] The second complaint, filed in the Southern District of New York, states that the same copied L. Russell Brown and Sandy Linzer’s son, "Wiggle and Giggle All Night."[2] While Dua Lipa has mentioned that her song borrows from an older era of music and has been candid that she took inspiration for her music, neither complaint outlines any direct evident of copying, but instead moves to show a “substantial similarity” between their work and Dua Lipa’s song.
Litigation around musical copyright is often complex because artists can take inspiration from other artists and borrow from genres and style of music to an extent. In order to prove infringement, the accuser must show that 1) the defendant, in this case, Dua Lipa, had access to the work and 2) the work is substantially similar to protected elements of the original artist’s work.[3] An important aspect here is that there must be a substantial similarly in a “copyrightable” aspect of the work, and so a copying of generic musical elements or principles is not considered a violation.[4] As previous litigation has shown in the cases of Robin Thicke’s “Blurred Lines” or Katy Perry’s “Dark Horse” cases, the court looks at more than just generic or layman similarities between two pieces of music. Generally, the court will look for a similarity and overlap in specific melodies, keys, and patterns in the music that extend beyond these overarching comparisons.
The two complaints make their allegations in incredibly different ways. Complaint 1 is brief and actually makes no specific factual allegations as to how the works are substantially similar. It simply says that Dua Lipa had access to the song because it was in the public domain, and it is highly unlikely that “Levitating” was created independently with no reference to the song “Live Your Life.”[5] On the other hand, Complaint 2 engages in more of the substantial similarly analysis by illustrating through a musical transcription of the two songs and a third song, “Don Diablo” how the melodies line up and where they are repeated in the music.[6] The complaint further compares the rhythms of the two songs through musical transcriptions, and explains how even the lay person has identified similarities in the music and used the songs on Tik Tok and another popular platforms.[7] Dua Lipa has given credit to other artists she borrowed from to avoid litigation, but she failed to do so here and was informed by the Plaintiffs in a cease and desist letter.
While it is unclear if Dua Lipa will in fact be found to have infringed on any other music, Complaint 2 in the Southern District of New York has a better chance of prevailing because the plaintiffs engage in the substantial similarity analysis more thoroughly to show and not just tell that the song was not made independently. Both complaints seek damages from the profits of the song itself, and Complaint 2 also seeks injunctive relief for any further reproduction of the song.[8]
[1]Complaint, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).
[2] Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).
[3] Legal Entertainment Contributor, Dua Lipa Sued Again (And Again) For Copyright Infringement - Do These Lawsuits Have Merit?, Forbes (Mar. 8, 2022), https://www.forbes.com/sites/legalentertainment/2022/03/08/dua-lipa-sued-again-and-again-for-copyright-infringementdo-these-lawsuits-have-merit/?sh=72809c1978d3.
[4] See, K&L Gates, “Levitating” Lawsuits: Understanding Dua Lipa’s Copyright Infringement Troubles, The National Law Review (Mar. 21, 2022), https://www.natlawreview.com/article/levitating-lawsuits-understanding-dua-lipa-s-copyright-infringement-troubles.
[5]Complaint at 17-18, Cope v. Warner Records, Inc., Case 2:22-cv-01384 (C.D. Cal. 2022).
[6]Complaint at 37-38, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).
[7] See, Complaint, Larball Publ’g Co., Inc. v. Dua Lipa, Case 1:22-cv-01872 (S.D.N.Y. 2022).
[8] Id.