Dua Lipa’s enormous 2020-21 hit song, “Levitating,” has been the focus of, so far, three different copyright lawsuits this year!
Here’s a quick rundown on all three; whether or not they have any teeth in the first place and what I expect will happen.
First, in case you live under a rock, here’s Levitating, not in its originally released form, but in the even more popular remix version featuring DaBaby.
Artikal Sound System sued first.
The first infringement claim came from a Florida-based reggae band, Artikal Sound System, whose 2017 track, “Live Your Life,” has a chorus that absolutely sounds quite a bit like Levitating. and from the standpoint of observable similarities, I’d say it was less ridiculous than a lot of other cases that make the news.
The similarity is fairly obvious. They certainly sound similar. They’re in the same key, which is not super important musicologically, but it sure makes A/B comparisons seem more damning on the internet. The chords are pretty much the same in the parts that matter, although they’re also the same as a zillion other songs. But then you get to the bluest blue chips, melody and lyrics. And both are pretty similar!
Levitating’s lyric: “ (I got you) moonlight, you’re my starlight. I need you, all night, come on, dance with me.”
Live Your Life’s lyric: “All day, all night, heartache till the sunrise now.”
So why wasn’t this a super strong case?
Two reasons. First, there was no compelling evidence that the creators of Levitating would ever have heard Live Your Life. We would need to infer access to it from the very compelling similarity in the two works, such that you could say, “Lipa MUST have heard it; it’s the only way Levitating would exist as it does!” But I would argue mostly because of the simplicity, brevity, and commonality of the similarities, you could not make that assumption. Those melodies are simply a word on one pitch, followed by a word one note down, followed by another. It’s very much just a scale. And the groovy rhythmic way “moonlight, you’re my, starlight” are each sung is the just one simple two-syllable figure, repeated three times in that dotted-eighth, sixteenth note rhythm that we associate with the beginning of the Charleston. It is a tiny idea stretched out over a few bars.
The Artikal Sound System case was dismissed on the basis that there was no compelling reason to believe Lipa was exposed to Artikal’s song.
L. Russell Brown and Sandy Linzer’s Wiggle and Giggle All Night” and 1980’s “Don Diablo.”
Whereas Artikal said Levitating’s chorus sounded just like theirs, Brown and Linzer came to claim that the verses of Levitating are taken from their “Wiggle and Giggle All Night.” (Let's set Don Diablo aside for a minute.)
Here’s Wiggle And Giggle All Night, sung by Cory Daye.
In terms of substantial similarity, this case has less going for it.
Yes, Wiggle and Giggle has those quickly sung sixteenth notes that Levitating’s verses have, but just as with “Live Your Life,” these are repetitions of one very brief and simple idea – four syllables sung to four sixteenth notes, and again, simply working down a scale – four quick syllables on one pitch, then four on the next pitch down in a scale, and then again.
It's true that Levitating does it as well. The point is that scales aren't protectable, sixteenth notes aren't protectable, and since the lyrics are different, I don't find that this is a particularly compelling similarity at all.
And importantly, unlike in the Artikal comparison, here, the two scales are dissimilar. “Wiggle and Giggle” is in a major key and Levitating is in a minor key. The notes could be presented as having similar letter names, but because we're employing different tonalities, major versus minor, they sound quite different. And there are no lyrical similarities to which we might point.
What does Don Diablo have to do with anything? Incredibly, a not unknown singer named Miguel Bosé, born on third base I might say, since he could claim Hemmingway and Picasso as close family friends as a child, recorded Don Diablo in 1980 and, as you'll hear, it was more or less "Wiggle and Giggle" set to new words.
Linzer and Brown sued and now they have copyright in both songs. This I suppose makes it harder for Lipa to say she never heard Wiggle because it has its own exposure, and so does its twin. These are old and not famous songs and Dua Lipa was born about fifteen years after either of these songs were current, but on the other hand, courts have accepted the access arguments of many a plaintiff on the basis that a song was simply available on the internet.
Here, a combination of a little bit of similarity (to me readily dismissible, but to a court, probably less so) and a song that was certainly better circulated than “Live Your Life,” leads me to think this could be expected to go a few rounds further into the fight.
Still, musicologically, this is not substantially similarity. The lyrics are different, and since they’re not in the same key, the melodies aren’t as similar as they might look on paper, and even if they were a bit more similar, the melody in Wiggle and Giggle that bears any similarity to Levitating is made of simple building blocks like static rhythmic figures over descending scale tones.
For all kinds of reasons, Levitating is not a copy of Wiggle and Giggle. The musicology is even weaker than with Artikal Sound System’s Live Your Life, and yet, this one might be longer lived.
Note: on the day I was typing this up, this case survived summary judgment, so indeed it will go on longer than the Artikal case did.
Bosko Kante sues for a talkbox part he contributed to Levitating.
Yes, he gave Lipa some audio, and that element appears in Levitating’s chorus.
But Kante claims the license he granted, verbally, was limited to the one original version, and therefore the various remix versions that were released, especially the EVEN MORE popular than the original one that featured DaBaby, are all infringing uses.
Musicologically, I could speak to the relative value of these parts to Levitating, or validate the claim that Kante’s parts happen to be even more prominent in the remixes than in the original, but for now that’s all the side story. This is more about getting it in writing versus making assumptions.
Kante creates these cool talkbox parts on a piece of tech that owns, a modern version of a talkbox that’s more advanced than the ones made famous by Peter Frampton (Do You Feel Like We Do), and Joe Walsh (Rocky Mountain Way).
I don't need to do any forensic audio. The audio he provided made it onto the remix versions, so this will be about what you can and can’t extrapolate from a verbal contract when its disputed.
Again, Kante concedes that he meant for the elements to appear on the original, but no others.
So this may turn into an opportunity for everyone to get clearer on what if anything you can read into a verbal contract around the scope of a license.
Could we assume the original contribution was a work for hire, such that Lipa would own it pretty lock stock and barrel?
Can we assume that when you accept an offer to create these assets, you do create them, and deliver them, does that imply, at all, that Lipa can then remix the song without coming back for another license?
What about the underlying music? Kante registered the copyright for both the recordings he produced, and separately (because they’re different copyrights) for whatever lyrical and melodic composition they contain. Is his lyrical and melodic composition original enough to enjoy protection as a composition? I haven’t looked into that yet.
All of this is interesting, but since I’m taking guesses here, I’d say no; those assumptions about work for hire and implied or easily assumed broader license sound like tough arguments to make.
This one is less about musicology but is far more interesting to me than the preceding two. I'm looking forward to seeing how it goes.
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