Dua Lipa has successfully defeated a song-theft lawsuit filed in relation to her 2020 hit ‘Levitating’. However, the lawyer representing the songwriters who sued her has vowed to appeal, telling Law360 that there’s a “growing disconnect” in how courts assess song theft claims like this one and how people actually experience music.
L Russell Brown and Sandy Linzer claimed that ‘Levitating’ ripped off their 1979 song ‘Wiggle And Giggle All Night’, as well as 1980’s ‘Don Diablo’, which was a derivation of their original work.
However, the judge overseeing the case has ruled that – while there are definite similarities between ‘Levitating’ and the earlier songs – there is not a case for copyright infringement, basing that conclusion on a recent ruling in one of the Ed Sheeran song-theft disputes.
But, says attorney Jason Brown, the ruling in the Sheeran case, and this one, are both part of a trend that is making it harder for songwriters to take action when other artists incorporate their work into new songs. Judges are getting too caught up in “academically analysing briefs, bar lines and musical notation”, he said, rather than considering “how audiences actually experience music”.
These cases, he reckons, shouldn’t be decided by judges based on experts dissecting musical scores, but by juries being able to assess whether two songs are “strikingly similar” by simply listening to them side by side. “The soul of a song doesn’t live in a court brief”, he says. “It lives in the sound, the feel and the performance – and that’s what juries should be allowed to hear and judge”.
In most song theft cases – even if it’s proven that the writer of the new song had access to the earlier song, which wasn’t proven in this case – the real focus is whether the elements shared by the new song and the old song enjoy copyright protection in isolation.
Despite the big ruling in 2015 in favour of the Marvin Gaye estate over ‘Blurred Lines’, which the court decided did infringe the copyright in Gaye’s ‘Got To Give It Up’, most US courts take a cautious approach when assessing song-theft claims.
Judges and, in some cases, juries too recognise that it’s common for multiple pop songs to share key elements, and they don’t want to restrict the art of songwriting by allowing one party to own and control any of the building blocks of music, or even common ways of combining those building blocks.
In her ruling in favour of Lipa, Judge Katherine Polk Failla cites last year’s ruling in the Second Circuit appeals court in one of the song theft lawsuits filed in relation to Ed Sheeran’s ‘Thinking Out Loud’.
The second circuit, writes the judge, recognised that “basic musical building blocks like notes, rhythms and chords are generally not copyrightable”, but there might be copyright in the way those building blocks are combined, ie in the “selection and arrangement” of those elements.
The appeals court then set out some criteria for assessing “whether a selection and arrangement of otherwise unprotectable elements is original enough to merit copyright protection”.
Applying that to the ‘Levitating’ case, Failla notes that the similarity between Lipa’s song and the earlier works can be distilled into “one descending scale plus one additional identical note”. Which is basically two musical elements combined.
And, in the Sheeran case, the Second Circuit “made clear” that “the combination of two unprotectable elements is not sufficiently numerous or original to constitute an original work entitled to copyright protection under the selection and arrangement theory of liability”.
Failla then explains that, in a later legal filing – in what the judge dubs “a last-ditch effort to salvage their claim” – reps for Brown and Linzer said there were additional “elements, characteristics and contexts” to consider which they believe, “in combination, make the two-component musical phrase at issue protectable”.
However, the judge does not agree. Brown and Linzer’s team, she writes, “concede that the five additional elements may individually be non-copyrightable”, adding, “this court agrees and, further, finds that they ‘lack sufficient originality alone or as combined’ to be protectable under copyright law”.
We await to see how Brown and Linzer’s lawyers deal with Failla’s criticism of their arguments in their appeal. But, as their attorney Brown himself notes, her criticisms do seem to be in line with judgements in other recent song theft cases, even if Brown reckons the courts keep getting it wrong.