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 on March 4, 2022, in the Southern District of New York, 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 post analyzes the second lawsuit filed by Brown and Linzer. Click here for our prior post on Cope v. Dua Lipa.

Copyright infringement test

The Second Circuit applies the test from Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946). 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. This case is a bit unusual in that Brown and Linzer are asserting copyright infringement of two songs: their composition “Wiggle and Giggle All Night” and the song “Don Diablo” whose copyright they acquired.

Larball v. Dua Lipa

Larball v. Dua Lipa

The Complaint alleges that Dua Lipa’s song “Levitating” and the remix “Levitating (feat. Da Baby)” infringed the copyright to the song “Wiggle and Giggle All Night.” L. Russell Brown and Sandy Linzer composed the song “Wiggle and Giggle All Night,” which was recorded by Cory Daye in 1979. Brown and Linzer also obtained the copyright to the song “Don Diablo” recorded by Miguel Bosé in 1980. Larball acquired the copyright to “Don Diablo” as the result of a copyright infringement action that Larball brought against Bosé for infringement of “Wiggle and Giggle All Night.” The copyright for “Wiggle and Giggle All Night” and “Don Diablo” have been assigned to Larball Publishing Company and Sandy Linzer Productions.

Similarities between “Wiggle and Giggle All Night,” “Don Diablo” and “Levitating”

 The Complaint alleges that Dua Lipa copied compositional elements from “Wiggle and Giggle All Night” and “Don Diablo” in two ways: (1) the signature melody and (2) the repetitive rhythm. The Complaint defines the signature melody as the “first and defining melody” in “Levitating.” It consists of two bars of sixteenth notes descending by one note in the scale on the beat. The Plaintiffs also allege that the Defendants copied a repetitive rhythm that consists of a dotted eight note followed by a sixteenth note tied to an eighth note featured in chorus or hook of “Levitating.”

Applying the Arnstein test

Copying

Plaintiffs can likely prove copying by showing some degree of similarity and access. To prove copying, Plaintiffs can show direct evidence or circumstantial evidence that Dua Lipa and her team had reasonable access to “Wiggle and Giggle All Night” and “Don Diablo,” and that there is some degree of similarity between these and both “Levitating” songs.[1] Access may be inferred from the status of a song as a top hit.[2] The Complaint describes that Defendants had reasonable access to Plaintiff’s songs because both parties are part of the Sony music family.

Plaintiffs can likely demonstrate some degree of similarity. To demonstrate some degree of similarity, Plaintiffs only have to show that there are similarities between their songs and the “Levitating” songs.[3] These similarities do not have to be of protectible or substantial material for the purposes of proving copying.[4] There is some similarity between the descending melody and use of the repetitive rhythm in “Levitating” and the melody and rhythms in “Wiggle and Giggle All Night” and “Don Diablo.” This combined with access under the Sony umbrella will likely be enough to show copying.

Plaintiffs also set forth several facts to argue that the writers of “Levitating” were influenced by the disco genre. The Complaint includes a Variety Magazine interview of Dua Lipa describing how she “went backwards in making ‘future nostalgia’…want[ing] to make sure that every song touched on both the future aspects and the nostalgic aspects.” The interviewer also comments that “the album seems to go even further back than that – to disco.” The Complaint also quotes “Levitating” co-writer Defendant Stephen Kozmeniuk as stating that it would be “cool to do a…slinky disco track.” Finally, the Complaint quotes a Rolling Stone writer describing Dua Lipa’s album as “throwback bangers” and having “traces of those pop stars who previously looked to disco for inspiration.” Though not explicit within the Complaint, these facts are seemingly set forth to construct the argument that Dua Lipa and her team intentionally sought out disco songs for inspiration when writing “Levitating.” While this argument may help Plaintiffs to establish some degree of similarity for the sake of proving copying, it may hurt Plaintiff’s argument for showing substantial similarity, as discussed below.

Improper Appropriation

Though some degree of similarity may be found, the melodies are not identical. There are five main differences between “Levitating” and the Plaintiffs’ works: (1) the melodies are different relative to the keys, (2) the Plaintiffs’ songs continue in a descending pattern, (3) the underlying chords are different, (3) “Wiggle and Giggle All Night” utilizes neighboring tones, and (4) “Wiggle and Giggle All Night” uses a syncopated rhythm.

Though “Levitating” starts on “F sharp,” the song is in the key of B minor. The signature melody in “Levitating” descends in a 5-4-3-2-1 pattern whereas the melody in “Wiggle and Giggle All Night” descends in a 3-2-1-7-6 pattern. Additionally, the signature melody in “Levitating” repeats exactly whereas the melody in “Wiggle and Giggle All Night” continues with a similar rhythm but with a 2-1-7-6-5 melodic line.

The underlying instrumental chord progressions in “Levitating” are also different from Plaintiff’s songs. The underlying chord for bar 10 in “Levitating” is “B minor,” the tonic of the key. The chord changes to “E minor,” the predominant chord of the key, in beat one of bar 11 and then back to “B minor” in beat three of bar 11. In contrast, the corresponding chord for bar 10 in “Wiggle and Giggle All Night” is “D major,” the tonic chord of the key. The chord changes to “A major,” the dominant chord of the key and does not change again under the melody corresponding to the signature melody. The first corresponding chord for “Don Diablo” is “B flat major,” but the chord moves at the same timing and interval as “Wiggle and Giggle All Night.” The difference between the chord progression is significant because the final note of the signature melody in “Levitating”, on beat three of bar 11, is consonant where the corresponding note is dissonant in the corresponding beat of the Plaintiff’s songs.

The melody in “Wiggle and Giggle All Night” contains several neighboring tones whereas the signature melody in “Levitating” contains five sets of four sixteenth notes that only change by a tone or half-tone on the beat. “Wiggle and Giggle All Night” also contains a tie and an eighth note, as shown in bar 10 of the transcription in the Complaint corresponding to the signature melody, that give the melody a syncopated sound different from that in “Levitating.”

Protectible elements

Dua Lipa has a strong argument that the allegedly copied components of Plaintiffs’ songs are not protectible. Under Arnstein, Plaintiffs must show that the allegedly copied compositional elements are substantially similar to protectible elements of their songs in order to demonstrate improper appropriation.[5] The signature melody can be characterized as a compositional idea of repetitive sixteenth notes that descend by one note in the key around every beat. Additionally, the repetitive rhythm is the Charleston rhythm which, as discussed above, is a common musical idea utilized throughout jazz and many other musical works.

The Complaint points to several interview excerpts that show the songwriter’s successful in making “Levitating” sound reminiscent of disco. However, the elements that give a song a “disco vibe” are not protectible. If they were, no musical artist could write a song within the genre without infringing or licensing rights. While the facts in the Complaint indicate that the writers of “Levitating” set out to write a disco track, there is no evidence that they intended to copy protectible elements of Brown and Linzer’s works. Dua Lipa and her team can likely make the argument that they wrote levitating utilizing musical ideas that are common to the disco genre, nothing more. Thus, while the song “Wiggle and Giggle All Night” is protectible, its use of sixteenth notes in a descending pattern and general use of the Charleston rhythm are not protectible elements on their own. 

Fair Use

If Plaintiffs are able to show substantial similarity, it is unclear if Dua Lipa has a fair use defense. Dua Lipa can argue that “Levitating” is transformative because it adds something new to the older disco sound in “Wiggle and Giggle All Night” and “Don Diablo” because it combines “future aspects” with “nostalgic aspects.” Additionally, Dua Lipa may be able to argue that “Levitating” is a parody under Lombardo v. Dr. Seuss because it alters the original expression with new expression, meaning and message. Lombardo v. Dr. Seuss Enters., L.P., 279 F.Supp. 3d 497, 510 (S.D.N.Y. 2017). However, this could be seen as inserting the melody in “Wiggle and Giggle All Night” into a modern setting.

The second factor is in favor of Brown and Linzer because “Levitating” is a musical work. The third factor may be in favor of Brown and Linzer, however there is room for Dua Lipa to argue. The complaint alleges that the signature melody is the “most listened to and recognizable part of the infringing works and plays a crucial role in their popularity.” The complaint also alleges that the signature melody is repeated six times in “Levitating,” roughly one-third of the song, and three times in “Levitating (Da Baby).” Thus, Plaintiffs can argue that Dua Lipa’s used a qualitatively and quantitatively large portion of their works. If the songwriters can establish that “Levitating” is a parody, they can argue that they had to take enough so that Plaintiff’s works could be recognizable. Dua Lipa could also potentially argue that the quality of the signature melody is not an exact copy of “Wiggle and Giggle All Night,” and the corresponding melody in Plaintiff’s songs is not the heart, or the most important part, of the songs because it only comprises the verses.

Finally, the fourth factor likely weighs in favor of Dua Lipa unless Plaintiffs can show evidence of actual harm. Additionally, like in the lawsuit above, Plaintiffs may even be experiencing positive market changes if they are receiving more streams or purchases because of “Levitating.” Weighing all of the factors together, the fair use analysis does not weigh clearly in favor of either party.

[1] See Arnstein, 154 F.2d at 468.

[2] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 181 (S.D.N.Y. 1976).

[3] See Arnstein, 154 F.2d at 468.

[4] See id.

[5] See Arnstein, 154 F.2d at 468

Complaint