Dua Lipa Sued Again (And Again) For Copyright Infringement

Contributing Author: Heather Antoine

Last May I wrote about the copyright lawsuit brought against Childish Gambino for his song “This Is America.” The opening line of that article was, “[t]hese days, it feels like music copyright lawsuits are a dime a dozen.” Not much has changed. Within the span of one week, Dua Lipa was sued twice for copyright infringement over her mega-hit “Levitating.” The first lawsuit was filed in California on March 1^st on behalf of the band Artikal Sound System (“Artikal”), authors and copyright owners of the composition of 2017 reggae hit “Live Your Life.” The second lawsuit filed on March 4^th in New York on behalf of L. Russell Brown and Sandy Linzer (“Brown/Linzer”), composers of Cory Daye’s 1979 disco song “Wiggle and Giggle All Night” and the 1980 song “Don Diablo.” Ironically, that same day, a copyright infringement suit was also filed against Sam Smith and Normani relating to their hit, “Dancing With a Stranger.”

Before jumping into these disputes, let’s set the stage with a few copyright basics. Copyright law is different from patent and trademark law. Think about them as intellectual property siblings; each with varied personalities.

Copyright protection gives to the author “exclusive property rights in the work, such as the sole right to reproduce, adapt, distribute, display and perform the work.” (Copyright Act of 1976 (17 U.S.C. § 101)) In Section 102, the Copyright Act provides, “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Copyright protects the “expression,” but not the “idea.” Arguably, the reason for this and the purpose of copyright law is to protect original works of art and to promote the creation of new works.

Why is that important here? One concept referenced in both lawsuits is the idea of “substantial similarity.” 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.

A series of tests are used to determine whether two creations are “substantially similar.” Very broadly speaking, substantially similarity in the musical context is determined via comparison of the general ideas – the “extrinsic” test – and comparison of the protectable elements of those ideas – the “subjective” test.” Lay people may not hear pitch, timing, or harmonic context. They may hear the chords and vocals though. Music is incredibly complex, as are the protectable and, importantly, not protectable elements. This one of the reasons forensic musicologists often take the center role in these cases.

According to the Brown/Linzer complaint, Lipa admitted to drawing inspiration from earlier artists when creating her album, “Future Nostalgia,” on which “Levitating” appears. In what has become an unwelcome (at least to this author) trend in legal writing, Brown/Linzer included a few puns in their complaint, stating “Defendants have levitated away plaintiffs’ intellectual property,” and “Plaintiffs bring suit so that defendants cannot wiggle out of their willful infringement.”

Perhaps the most infamous case was 2015’s trendsetter “Blurred Lines,” in which the family of Marvin Gaye accused Robin Thicke and Pharrell Williams of plagiarizing Gaye’s 1977 hit “Got to Give It Up.” The jury’s controversial $7.4 million verdict for the plaintiffs rocked the music industry. Thicke and Williams unsuccessfully argued the songs had the same “feel” and “groove,” but did not amount to infringement. A successful copyright infringement case should have more than a similar “feel,” “groove,” and “vibe.”

Another recent example involving copyright infringement involves Olivia Rodrigo. Although Rodrigo has been in the spotlight for a limited time, she has been the subject of numerous plagiarism claims, the most notable being an accusation that Rodrigo copied Paramore’s “Misery Business” in her hit song “good 4 u.” Following widespread internet commentary and countless mashups (and possible unknown cease and desist correspondence), Rodrigo added members of Paramore as songwriters to the song. In an October 2021 Teen Vogue interview, Rodrigo shared, “[e]very single artist is inspired by artists who have come before them. It’s sort of a fun, beautiful sharing process. Nothing in music is ever new. There’s four chords in every song. That’s the fun part — trying to make that your own.”

Consequences for musicians found liable for copyright infringement often extend beyond attribution of ownership into monetary damages and future royalties. And hit songs – those whose melodies live in our minds as we work, shower, and sometimes even sleep – are easy targets. Don’t expect the trend to stop anytime soon.

Legal Entertainment has reached out to representation for comment, and will update this story as necessary.

Heather Antoine is a Partner and Chair of Stubbs Alderton & Markiles LLP’s Trademark & Brand Protection and Privacy & Data Security practices, where she protects her client’s intellectual property – including brand selection, management, and protection. Heather also helps businesses design and implement policies and practices that are compliant with domestic and international privacy laws.