Loyola University Chicago School of Law, JD 2023
Singer and songwriter, Dua Lipa has come under two copyright infringement lawsuits over the past month. Both lawsuits allege the pop star’s hit song “Levitating” infringed upon copyrighted work. While the two suits allege infringement against the same song, their outcomes may differ based on the allegation brought forth in each complaint.
Copyright protection covers works of original expression. Protection gives the author “exclusive property rights in the work, such as the sole right to reproduce, adapt, distribute, display and perform the work.” Copyright law protects the expression but not the idea of the work. This intricate technicality is used to protect original works of art and to promote the new works. To establish copyright infringement, plaintiff must demonstrate they owned a valid copyright and the alleged infringed work copied constituent elements of the work that are original. When there is no direct evidence of copying, plaintiff must demonstrate that the accused infringers had access to the copyrighted work and the infringing work and copyrighted work are substantially similar. It can be quite easy to demonstrate the infringers had access to the copyrighted work. On the other hand, establishing the alleged infringed work is substantially similar to the copyrighted work is much more difficult.
The Ninth Circuit formulated a two-part test to prove substantial similarity. The infringing work must meet an intrinsic and extrinsic prong. The intrinsic prong requires an ordinary reasonable observer to subjectively evaluate the similarity of expression between the works. The extrinsic prong requires objective comparison of the constituent elements of the original copyrighted work to the alleged infringing work to see if there is substantial similarity in the protected elements of the copyrighted work. The extrinsic prong will not be met if the commonality between the copyrighted work and the infringing work is not based on protected elements.
Two suits against Dua Lipa
On March 1, 2022, Artikal Sound System filed suit against Dua Lipa in in Los Angeles federal district court. Just three days later, songwriters L. Russell Brown and Sandy Linzer filed a separate copyright infringement lawsuit against Dua Lipa for the same song, “Levitating.”. The two songwriters filed suit in New York federal district court. Both lawsuits alleged violation of the Copyright Act, 17 U.S.C. §§ 101 et seq.
Specifically, the Artikal Sound System alleges “Levitating” copied its 2017 song “Live Your Life.” The lawsuit is quite short but explains that “Live Your Life” was commercially available during the time “Levitating” was created and how the songs are substantially similar. Artikal Sound System seeks actual damages, cost of the lawsuit, portion of Dua Lipa’s profits stemming from alleged infringement, and any additional remedies the Court sees fit.
Brown and Linzer allege “Levitating” infringes upon their works “Wiggle and Giggle All Night” and “Don Diablo.” Specifically, the songwriters are claiming the defining melody in Dua Lipa’s hit is a direct duplicate of the opening melody in their two copyrighted songs. Brown and Linzer seek full compensatory and/or statutory damages, punitive damages, an injunction, portion of Dua Lipa’s profits stemming from alleged infringement, and any additional remedies the Court sees fit.
The Artikal Sound System lawsuit does not allege direct evidence of copying. Therefore, it must demonstrate Dua Lipa had access to “Live Your Life” and that “Levitating” is substantially similar to the copyrighted work. Since “Live Your Life” was commercially available worldwide, the plaintiff will likely be able to prove access. However, meeting the two-prong substantial similarity test will be much more difficult. Artikal Sound System failed to allege specific details that a reasonable observer could point out. Thus, it is unlikely the Artikal Sound System lawsuit will succeed.
On the other hand, Brown and Linzer’s lawsuit may have a higher chance for success. As in the first suit, the songwriters have to prove Dua Lipa had access to the copyrighted work and that “Levitating” is substantially similar to their songs. Brown and Linzer complaint alleged comparisons of the notes between “Levitating” and their songs, supporting the allegation of substantial similarity. Moreover, the two-prong substantially similar test will have to be met. Ordinary reasonable observers have already noticed the similarities of the work and posted about it on TikTok, meeting the intrinsic prong. The extrinsic prong will require the court to find the alleged common signature melody of the three songs is copyrightable.