Photo by Smorazanm (Pixabay)

Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School

Dua Lipa’s 2020 pop hit “Levitating” is facing copyright infringement lawsuits as of March 2022. Two separate song-writing teams, those for Artikal Sound System and Cory Daye, claim the song ripped off their own and filed complaints with their state federal courts. Copyright infringement proceedings are the best course of action for instances of song stealing, but are often expensive and difficult to win, as a complainant must demonstrate more than ‘alike sounds’ or ‘similar vibes’.

Claimants have the best chance of success if they can prove direct copying of their work, but considering the different lyrics and disparate sounds, these artists are unlikely to plead direct copying. Copyright infringement of a musical work in the United States typically requires finding two elements, access to the work and substantial similarity. For “Levitating,” the first complainant filed at the end of February 2022 in a Los Angeles federal court. Members of the reggae band Artikal Sound System allege that the song is substantially similar to its 2017 song “Live Your Life”.

The second complaint, filed on March 4, 2022 in New York federal court is by songwriters L. Russel Brown and Sandy Linzer accusing copying of their 1979 disco track “Wiggle and Giggle All Night”. These complainants have succeeded before in copyright infringement claims, now holding the copyright to Miguel Bosé’s 1980 song “Don Diablo” that was found to infringe on the 1979 track.

Access

Musical cases such as Bright Tunes Music Corp v Harrisongs Music Ltd hold that access can be subconscious. The defendant may not have accessed the song personally through a search or download and still be liable. If the song is widely disseminated due to its popularity, then access may be found and the defendant may be liable for unconsciously plagiarizing.

The first complainant’s song was not available on large platforms such as iTunes and has very limited number of plays on YouTube. Given its limited availability at the time, they may have difficulty proving their work was accessed by Dua Lipa’s team. The second complainant’s song has been accessible to the public for decades, so it may be more successful on the accessibility element for an infringement lawsuit.

Substantial Similarity

In the United States, if the song was not easily accessible, then the burden of proof for substantial similarity will likely be higher. Substantial similarity asks whether the average listener would think the songs are similar enough when listening to them both. This analysis requires looking at the song’s composition and, possibly, expert testimony. Courts may analyze elements like melody and chord progression. For instance, the second complainant stated that Levitating uses the complainant’s “signature” melody six times throughout the song. It is also important to distinguish between the similarity of the songs and their similarity in the industry. A certain theme, like the resurging ‘disco-era’ Dua Lipa was inspired by, is persisting in the music industry so that songs may sound similar but not to a substantial degree that constitutes copying.

Next Steps

Although Dua Lipa’s team has yet to provide comment, she must still give her own defence in response to these lawsuits. The easier defence would be to show the songs are not substantially similar through her own expert analysis of each song’s composition. The team likely would not succeed in advancing a public domain defence, which states that the copyright protection for a work has expired or it failed to meet the protection for copyright protection. Neither complainants’ work has technically expired, as artists receive protection for the life of the artist plus seventy years. They may try to argue that the song borrows elements of the prior works that are not under copyright, which did not require creative input. Either way, Dua Lipa’s “Levitating” may be brought down to Earth by these lawsuits’ gravity and possible damages.