By Alyssa Yoshino.

Dua Lipa was hit with two copyright infringement lawsuits in the first week of March 2022. The first was filed by the members of the band Artikal Sound System, a Florida-based reggae band, who allege that Dua Lipa’s “Levitating” infringes their song “Live Your Life.” Artikal Sound System filed the lawsuit on March 1, 2022, in the Central District of California.

The second lawsuit was filed by the composers of the song “Wiggle and Giggle All Night,” L. Russell Brown and Sandy Linzer through their respective companies, alleging that “Levitating” infringes “Wiggle and Giggle All Night” and “Don Diablo.” This second lawsuit was filed on March 4, 2022, in the Southern District of New York. This post analyzes the first lawsuit filed by Artikal. Another post analyzes the second lawsuit filed by Brown and Linzer.

Copyright infringement tests

The two lawsuits will be subject to different copyright infringement tests. The Ninth Circuit, where Artikal Sound System filed, applies the test articulated in Skidmore v. Led Zeppelin.[1] To prove infringement under Skidmore, Plaintiffs must show that (1) Defendants copied or copying can be inferred from access and similarities, and (2) unlawful appropriation both extrinsically and intrinsically.[2] The extrinsic test under Skidmore compares the objective similarities of specific expressive elements; it allows for unprotectible elements to be filtered out of analysis.[3] The intrinsic test under Skidmore assesses the similarity of expression between the works from the standpoint of the ordinary reasonable observer with no expert assistance.[4] The Second Circuit, where Brown and Linzer filed, applies the test circulated in Arnstein v. Porter.[5] To prove infringement under Arnstein, Plaintiffs must show that (1) Defendants copied original expression or elements and (2) improper appropriation based on substantial similarity of protected expression.[6]

Though the analysis of improper appropriation differs in the Second and Ninth Circuits, both lawsuits against Dua Lipa may face difficulties in proving that Dua Lipa’s “Levitating” copies protectible elements of both plaintiff’s songs. Artikal Sound System will likely face difficulties under the extrinsic test of the Ninth Circuit because the similar elements may not be copyrightable on their own and thus will be filtered out of the analysis. And if Artikal relies an original selection and arrangement of noncopyrightable elements, the Ninth Circuit requires proof of virtual identity between the two songs for infringement.

Cope v. Dua Lipa

The Complaint, which is only 5 pages, brought by the members of Artikal Sound System alleges that Dua Lipa, and the other Defendants, listened to and copied “Live Your Life” while composing “Levitating” and that “Levitating” is substantially similar to “Live Your Life.” The Complaint alleges “it is highly unlikely that ‘Levitating’ was created independently from “Life Your Life.” However, the Complaint is brief and does not point to any specific elements of the songs that are substantially similar.

Similarities between “Live Your Life” and “Levitating”

Though the Complaint does not describe what elements of the songs are allegedly similar, there are several similarities between “Live Your Life” and “Levitating.”

(1) The key: Both songs are in the key of B minor in a four-four time signature with similar speeds.

(2) Timing: “Live Your Life” is slightly faster at 103 beats per minute (bpm) while “Levitating” is slightly slower at 98 bpm.

(3) Rhythm of the chorus: Both songs utilize the Charleston rhythm, a pattern of dotted eighth notes followed by a sixteenth note and a rest.

(4), Chord progression: The songs share a similar chord progression; both contain a Bm7-F#m7-Em7 progression. However, “Levitating” ends the chord progression back on Bm7 whereas “Live Your Life” stays on Em7 for the fourth chord in the progression. This progression is found in the instrumental portions of “Levitating.” The chords in the hook are not seventh chords. Thus, the progression in the hook is Bm-F#m-Em.

(5) Melody of the chorus: The vocal melodies of both songs are also quite similar with the notes in the Charleston rhythm falling on an E. The melodies differ towards the end of the vocal phrases in the choruses most evident where Dua Lipa sings “come on dance with me, I’m levitating.”

(6) Lyrics and rhyme: There’s a weak similarity between the words and rhyme: “all night” and “sunrise” in “Live Your Life” versus “moonlight,” “starlight,” and “all night” in “Levitating.”

Applying the Skidmore v. Led Zeppelin test

Copying

Artikal Sound System will likely attempt to show at least circumstantial proof of copying. Though the Complaint does not discuss any direct evidence of copying, Artikal Sound System can show several similarities between “Live Your Life” and “Levitating,” as discussed above, and likely show access. Artikal Sound System can argue that access is inferred because “Live Your Life” charted to the number two spot on the Billboard reggae chart in 2017, creating a reasonable possibility of access to the creators of “Levitating.”[7]

Unlawful Appropriation

Extrinsic test

Though “Levitating” sounds similar to “Live Your Life,” Artikal Sound System will likely not be able to overcome the extrinsic test because, arguably, the similar elements are not copyrightable on their own. Under Shaw v. Lindheim, “substantial similarities between unprotected elements…cannot be used to find substantial similarities in the protectible expression of two works.”[10]

The key of B minor and the four-four time signature are such common and staple elements of musical compositions that these elements are not protectible. Similarly, the simple rhyme scheme and individual words within the lyrics of “Live Your Life” that Artikal Sound System allege are similar are not protectible on their own.

The remaining similar elements, as discussed above are thus: (1) the rhythm of the chorus, (2), the chord progression, and (3) the melody of the chorus. The protectability of each will be discussed below.

The rhythm in “Live Your Life” will likely be found to be an unprotectible element because it is a common musical idea. This rhythm, the Charleston rhythm, was popularized by composer James P. Johnson’s song “The Charleston” in 1923.[11] The Charleston also became popular ballroom dance music characterized by its syncopated rhythms within a four-four time signature.[12] Syncopated rhythms have also been described as a characteristic of disco chords.[13] Several modern pop songs also utilize the Charleston rhythm including the intro in Outkast’s “Rosa Parks” and the outro in DNCE’s “Cake by the Ocean.”[14]

The chord progression will also likely be found to be an unprotectible element of “Live Your Life.” As articulated in Batiste v. Najim, basic chord progressions that are common throughout a genre are unprotectible.[15] “Live Your Life” and “Levitating” share a three-chord progression. This chord progression will likely be found to be unprotectible because a Bm7-F#m7-Em7 is such a short chord progression that can likely be found in other songs such as “Move On Up” by Curtis Mayfield.[16] Finally, the melody of the chorus may be found unprotectible because the similar melody is almost entirely on the note of E.

None of the lyrics is the same. Short phrases and titles are not copyrightable. Nor is a word itself.

Artikal Sound System will likely not be able to overcome the extrinsic test of the Ninth Circuit because each element that “Levitating” allegedly copies from “Live Your Life” is not protectible on its own. The allegedly copied rhythm, chord progression, and melody should not be considered copyrightable, in my view.

Intrinsic test

However, if the court finds some of the above elements are copyrightable, a jury will consider if there is infringement or substantial similarity to a law audience. We’d have to know which elements are copyrightable. The chorus hook “Levitating” sounds quite similar to the chorus in “Live Your Life.”[8] Dua Lipa’s own fans have commented on social media about the similarity in sound between the two songs.[9] Ultimately, if the case goes to the jury, it will decide the ultimate question of substantial similarity.

Fair Use

Even if Artikal Sound System is successful in proving their copyright infringement claim, Dua Lipa may still be able to argue fair use under 17 U.S.C. § 107. Under § 107, four factors are considered in evaluating fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.[17]

Under Campbell v. Acuff Rose Music, no factor in the fair use analysis is dispositive.[18] Additionally, under Campbell, an analysis of the first factor includes asking if the use of the work was transformative.[19] Transformative under Campbell means the addition of something new, with a further purpose or different character, altering the first with new expression, meaning or message.[20] Dua Lipa may be able to argue that “Levitating” is transformative because the song adds modern music to elements nostalgic of older decades and genres. If Dua Lipa cannot show that “Levitating” is transformative, then the first factor will be in favor of Artikal Sound System because the song is commercial in nature.

The second factor weighs in favor of Artikal Sound System because “Live Your Life” is a musical work and close to the core of copyright.

The third factor could go either way. Though the similar portion of the song only spans four measures, these four measures are repeated several times throughout both songs. Dua Lipa can argue that the quality of what was taken weighs in favor of fair use because what was copied were musical ideas. However, if Artikal Sound System has proved copyright infringement, then it will be established that Dua Lipa copied protectible elements of “Live Your Life.”

The fourth factor weighs in favor of Dua Lipa unless Artikal Sound System can show actual harm. Dua Lipa can show that Artikal Sound System’s music streams have increased after this lawsuit was filed. “Live Your Life” has over 334,000 plays on SoundCloud.[21] Their next highest played song has less than 2,000 plays.[22] Artikal, however, will argue that it lost royalties from Lipa for use of their song.

Taken together, the factors are fairly balanced for and against fair use.

For a contrary view on infringement, Rick Beato thinks the two songs are very similar, with the suggestion there might be infringement. It’s worth comparing his analysis in the video below.

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[1] See Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018).

[2] See id.

[3] See id.

[4] See id. at 1136.

[5] See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946).

[6] See id.

[7] See Devi Seitaram, Dua Lipa Sued by Reggae Band Artikal Sound For Jacking “Levitating”, Urban Islandz (Mar. 3, 2022), https://urbanislandz.com/2022/03/03/dua-lipa-sued-by-reggae-band-artikal-sound-for-jacking-levitating/.

[8] See Artikal Sound System, 03 Live Your Life, Soundcloud (Mar. 29, 2017), https://soundcloud.com/artikal-sound-system/03-live-your-life.

[9] See Chrstina Nuun, Even Dua Lipa Fans Think Artikal Sound System ‘Had the Right to Sue’ over ‘Levitating’, Showbiz CheatSheet (Mar. 4, 2022), https://www.cheatsheet.com/entertainment/even-dua-lipa-fans-think-artikal-sound-system-right-sue-over-levitating.html/.

[10] See Shaw v. Lindheim, 809 F. Supp. 1393, 1403 (C.D. Cal. 1992).

[11] James P. Johnson, Songwriters Hall of Fame, https://www.songhall.org/profile/James_P_Johnson (last visited Mar. 23, 2022).

[12] Charleston, Encyclopedia Britannica, https://www.britannica.com/art/Charleston-dance (last visited Mar. 23, 2022).

[13] Oliver Curry, Lessons from Disco, Attack Magazine (May 10, 2013), https://www.attackmagazine.com/technique/passing-notes/lessons-from-disco-chords/2/.

[14] See Outkast, Outkast – Rosa Parks (Official Video), YouTube (Apr. 27, 2013), https://www.youtube.com/watch?v=drsQLEU0N1Y; DNCE, DNCE – Cake By The Ocean, YouTube (Oct. 16, 2015), https://www.youtube.com/watch?v=vWaRiD5ym74.

[15] See Batiste v. Najim, 28 F.Supp. 3d 595, 615 (E.D. La. 2014).

[16] Move On Up, e-chords, https://www.e-chords.com/chords/curtis-mayfield/move-on-up (last visited Mar 24, 2022).

[17] 17 U.S.C. § 107.

[18] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584.

[19] See id. at 587.

[20] See id. at 579.

[21] See Artikal Sound System, supra note 8.

[22] See Artikal Sound System, Time EP, Soundcloud (Dec. 20, 2018), https://soundcloud.com/artikal-sound-system/sets/time-ep.

Complaint

Lawyers for Artikal Sound System: Robert Besser and Stewart Levy.