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Second ‘Levitating’ song-theft lawsuit against Dua Lipa allowed to proceed
By Chris Cooke | Published on Wednesday 9 August 2023
A US court has declined to dismiss one of the song-theft lawsuits filed over Dua Lipa’s hit ‘Levitating’. The judge agreed with Lipa’s team that the plaintiffs hadn’t really proven that the musician definitely had access to the earlier songs that she is accused of ripping off, but added that the lawsuit should be allowed to proceed for now on the basis of ‘striking similarity’.
‘Levitating’ has been the subject of two song-theft claims. Florida-based band Artikal Sound System alleged that Lipa’s hit lifted key elements from their 2017 track ‘Live Your Life’. But that case was dismissed in June.
The litigation that continues was filed by the publishing companies of songwriters L Russell Brown and Sandy Linzer. They allege that ‘Levitating’ infringes not one but two songs that they were involved in, 1979’s ‘Wiggle And Giggle All Night’ and 1980’s ‘Don Diablo’.
It transpires that that is because ‘Don Diablo’ is basically a rework of ‘Wiggle And Giggle All Night’. Having written their song in 1979, Brown and Linzer subsequently went legal over ‘Don Diablo’ – which was released by Miguel Bosé – and successfully argued that it was basically a derivation of their song. In doing so they secured an ownership interest in the copyright of ‘Don Diablo’.
In terms of the Lipa lawsuits – both the Artikal Sound System litigation and this one – her legal team set out to try and get both cases dismissed mainly by arguing that there was no evidence that Lipa or her collaborators had ever had access to the earlier songs before writing ‘Levitating’.
Regarding Brown and Linzer’s claim, attorney Christine Lepera wrote last year: “The complaint fails to allege wide dissemination of ‘Wiggle’ and ‘Don Diablo’”.
“With respect to ‘Wiggle’, the complaint merely alleges it achieved certain success in the Netherlands four decades ago. This does not establish ‘saturation’ and there is no allegation that the songwriters of ‘Levitating’ were in the Netherlands – or, indeed, had even been born – at that time”.
“With respect to ‘Don Diablo’”, she went on, “the complaint alleges it has been performed at certain times in Latin America; again, these allegations do not establish ‘saturation’ or that the ‘Levitating’ writers participated in the Latin American market at the relevant times”.
In her ruling yesterday, the judge overseeing the case – Katherine Polk Failla – basically agreed that none of the explanations for how Lipa might have accessed ‘Wiggle’ or ‘Don Diablo’ that have been presented by the plaintiffs are particularly strong.
However, where two songs are incredibly similar – so, ‘strikingly similar’ – plaintiffs can overcome weak theories regarding access by arguing that copying is the only explanation for how two works could end up being so alike.
Failla wrote: “Despite failing to plead access, plaintiffs have alleged just enough facts to proceed to discovery on a theory of ‘striking similarity'”.
She then noted legal precedent that says “plaintiffs need not prove access if they can show that the works are ‘so strikingly similar as to preclude the possibility of independent creation'”.
Though, the judge then added that – while she is allowing the case to proceed for now on the basis of ‘striking similarity’ – Brown and Linzer will face a significant burden if and when the litigation gets to trial.
“Proving striking similarity as a factual matter will be a tall task”, Failla wrote. “Plaintiffs will need to demonstrate not just that the works are similar, but that their similarities are ‘so striking so as to compel the conclusion that copying is the only realistic basis for them’”.
But nevertheless, the judge concluded: “Plaintiffs have failed to allege a claim of copyright infringement as to ‘Wiggle’ under an access theory, but are entitled to proceed to discovery on their ‘striking similarity’ theory. Consequently, defendants’ motion to dismiss is denied”.
