Introduction
Two suits have been filed against the English artist Dua Lipa for copyright infringement, as her song “Levitating” was alleged to be a duplicate of songs “Wiggle and Giggle All Night”; and “Don Diablo”. Another artist, Artikal Sound System, has also claimed that Dua Lipa infringed the copyright their work “Live Your Life”. Quite often, this is the blurry line between those actions which are permitted and those which are not. While law tries to introduce boundaries on permitted activities, music has largely been viewed as a field unrestricted by any boundaries. Since such disputes involve monetary claims, courts must decide if the original work and the allegedly infringing work are similar or not. This blog post explores the aspect of musical similarity in Dua Lipa’s work to conclude if there has been any infringement.
The problem of Musical similarity in the two works
Musical similarity refers to resembling a work, either wholly or some specific characteristics of it. This means that an ordinary listener (with no professional knowledge about music) can also identify the similarity between the two works.
To decide this, one must refer to the genre of the music, which is a dance style, the usage of chords such as one minor seven, five minor seven and four minor seven are not uncommon and can be found in a variety of songs such as Evil Woman by Electric Light Orchestra.
On a superficial comparison of the works, Levitating and Live your Life, the melodies are largely identical as the same notes are applied to the same beat, especially with the same rhythm as well. Anyone at the first instance of listening to “All day all night party to the sunrise” from Live your life, and “You moonlight you’re my starlight I need” from Levitating can easily identify the similarities.
Second, both the works have alleged to bear lyrical similarities, such as employing the same rhyme scheme, which is provided as follows:
Live your life:
All day, all night
Party to the sunrise
Don’t stop ‘till you have
Lived your life
Lived your life for real
Levitating (chorus):
I got you, moon light
You’re my starlight
I need you, all night
Come on dance with me
I’m levitating
“All night” can be found in both verses at the same note and key, which sparks interesting questions about copyright infringement. One might question how a song can exist with the same key, identical rhythm, and vocal melody? Musicologists, who are experts in music as an academic subject and not in performances, study this process to note that while the vibe and harmonic context are similar, people presume it to have the same melody, which Levitating does not in the present case.
Analysis
First, it is pertinent to note that both works employ the Charleston rhythm, which was not invented by a reggae band, but has been used before in works such as Blame it on the Boogie (1978), Rosa Parks (1998) and the outro in Cake by the Ocean (2016). To a careful listener, the present works show that chord progression is not the same for both. The Courts accepted the argument that a similar musical pattern has been used in countless songs in the Led Zeppelin copyright infringement case of the song Stairway to Heaven, where reliance was placed on the musical composition and not the sound recording.
Second, it must be acknowledged that a level of creativity exists in works relying on existing works, and the identification of the variances depends upon the listener. For this, it is important to separate the lyrics from the underlying score in the song. It is permitted to have multiple variations of works such as that of the original Mozart’s symphony number 40, and its creative version by Mambozart by Klazz Brothers. This allows for the creation of new “original works” inspired by existing “original works”.
Third, works can be analysed under three different components: identical tunes or rhythm, identical words, and similar style. While the first and the last component have been satisfied in the present works, the second element of identical words has not been fulfilled satisfactorily (as per the comparison above). While lyrics are protected as literary works and rhythm as musical work under Section 2(p), the style is not protected under copyright law. This can be noted in famous works such as TikTok by Kesha and California Gurls by Katy Perry, where such style of tempo and rhythm are common in pop music. In the present case, though the stress on the words might sound similar, the lyrics are not, but could be inspired.
Fourth, Dua Lipa has mentioned herself that Outkast was the inspiration for her album Future Nostalgia. While theoretical distinction exists between influence and wrongful appropriation, the US court in Williams v. Gaye blurred this distinction when it found substantial similarity between “Blurred Lines” and “Got to give it up”. The court failed to distinguish between protectable and nonprotectable elements in a work, and failed to distinguish between inspirtation and theft by holding that protectability of music elements is a question of fact. It is noteworthy that influence/inspiration is not uncommon in the music industry and can be observed in a variety of works such as “Drivers License” and “Good 4 U” by Olivia Rodrigo. However, due to Williams judgment, artists began to accord recognition songwriter credits and portions of generated revenue to anyone who could have influenced their work, such as Taylor Swift being added to the list of co-writers in Rodrigo’s songs.
Lastly, the statement in the plaint, which notes that it was highly unlikely that Levitating was created independently from “Live your life” is flawed, as the latter work can itself be traced and compared to the songs mentioned earlier in terms of the beat (not considering the pace of the beat). Further, there have no legitimate sources to listen to the “original work” , Live your Life, as the Youtube link was posted after the lawsuit was announced, and it is currently not available on streaming platforms such as Spotify, Apple Music etc. This raises the question of whether the writers of Levitating had “access” to live your life (emphasis on access, and not the level of popularity), thereby making it difficult to sustain the argument for infringement.
Conclusion
The above analysis leads to the conclusion that Levitating is not based on Live your Life; instead, both works are based on previous works. Chords by themselves are not copyrightable, but the melody determines the extent of copyright protection. This reflects that different components of the song, such as the composition, the instrumentalization, and the sound recording, are separate subject matters of copyright law. On the question of musical similarity, it must be recognised that future works are often inspired by works of the past, such as Robert Johnson Blues influencing a wide range of artists in genres such as various rock, alternative rock etc. Therefore, the final question should be if there was a “substantial reproduction” of the original work and raises the question of musical coincidences or influence as a ground to escape legal liability. The decision is yet to be pronounced, but the saving grace for Dua Lipa comes in the form of the Ed Sheeran judgement, which is a positive precedent in her favour.
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