Ben Martin, Associate Member, University of Cincinnati Law Review
I. Introduction
Dua Lipa released her hit song “Levitating” in 2020 which reached number 2 on The Billboard Hot 100 on May 22, 2021.[1] The song recently became the longest-charting song on the Hot 100 by a female artist.[2] Despite its massive commercial success, the song has been surrounded by controversy after Dua Lipa and her co-writers were sued by artists alleging that “Levitating” violated copyright law.[3] Filed in the Central District of California, Cope et al v. Warner Records, Inc. et al, will be dictated by precedent from the Ninth Circuit that has not always been consistent.
This article first looks at the complaint in the case and then examines the applicable copyright law that will apply to the lawsuit. The article concludes by discussing what a court may consider during litigation.
II. Background
A. The Lawsuit
On March 1, 2022, Christopher Cope, Christopher Montague, Fabian Acuna, Adam Kampf, and Denton Bedward, collectively the members of the band Artikal Sound System, filed suit against Warner Records, Inc., Dua Lipa, Sarah Hudson, Stephen Kozmeniuk, Bosco Kante, and Clarence Coffee, Jr.[4] Artikal Sound System stated in its complaint that it released “Live Your Life” in 2017 which reached number 2 on the Billboard charts reggae section that year.[5] Artikal Soundsystem further alleged that Dua Lipa and her codefendants “listened to and copied” “Live Your Life” before and while writing “Levitating” in 2020.[6] Because of “Levitating’s” substantial similarity to “Live Your Life,” Artikal Sound System asserts that “it is highly unlikely that ‘Levitating’ was created independently from ‘Live Your Life.’”[7]
B. Copyright Law in the Ninth Circuit
The basic elements for a copyright infringement lawsuit appear straightforward, but closer inspection reveals cascading elements and tests. At the highest level, a plaintiff needs to prove that 1) they own the copyright in the infringed work, and 2) someone else copied protected elements of the copyrighted work.[8] However, to satisfy the second element, the Ninth Circuit requires that a plaintiff prove two additional elements: “copying” and “unlawful appropriation.”[9]
Showing that the defendant actually copied the plaintiff’s work is necessary because “independent creation is a complete defense to copyright infringement” regardless of how similar the two works may be.[10] Copying can either be shown by direct evidence (for example, a video of Dua Lipa jamming out to “Live Your Life” talking about how she loves the chorus) or by circumstantial evidence.[11] To show infringement based on circumstantial evidence, the plaintiff must show that the defendant had “access” to the infringed work, and the two works must “share similarities probative of copying.”[12] Before the internet, iTunes, Spotify, and YouTube, access may have been an important factor in a copyright infringement case; however, today “[g]iven the ubiquity of ways to access media online…access may be established by a trivial showing that the work is available on demand.”[13] The similarities between the two works do not need to be extensive; they only need to share “similarities one would not expect to arise” from independent creation.[14] These similarities can be found from both protected and unprotected elements in the work.[15]
Unlawful appropriation is proven by showing that there are “substantial similarities” between the two works.[16] This prong also has multiple elements. The Ninth Circuit applies a two-part test to determine substantial similarity: an extrinsic and intrinsic test.[17] The extrinsic test “considers whether two works share similarity of ideas and expression as measured by external, objective criteria.”[18] A party hoping to prevail on this prong will introduce expert testimony to assist the jury by analyzing individual elements of a work and comparing them against the substantial similarity standard.[19] This test only considers similarity as to protected elements of the work.[20] Unprotected elements include common elements or ideas such as simple chord progressions (II-V-I) or the major scale.[21] Despite this, multiple unprotectable elements can be combined and receive copyright protection provided that the unprotected elements are used in an original way.[22] The intrinsic test, reserved for the jury alone, looks at the similarity between the pieces based on the impression of a “reasonable observer, with no expert assistance.”[23]
III. Discussion
A. Artikal Sound Systems Complaint will Survive a Motion to Dismiss and Likely Summary Judgment, as well.
Looking at both the complaint and comparing the two songs side-by-side, it seems highly likely that, absent a settlement, this case would get to a jury. The complaint filed against Dua Lipa appears to satisfy all pleading requirements necessary to survive a motion to dismiss.[24] It also seems highly likely that the case can survive summary judgment under Rule 56 in the Ninth Circuit.[25] Though the defendants may try to make it an issue, access likely will be established: Dua Lipa probably had a Spotify account in 2017. The remaining requirement for copying, “similarities probative of copying,” is a much lower bar than the substantial similarity test and would likely be met, as well. Whether the court will find “substantial similarities” under the Ninth Circuit’s extrinsic test will depend in large part on the experts brought by both sides. As various musical commentators have noted, both songs are in the same key (b minor), are close to 100 beats per minute (“bpm”), and have similar chord progressions (“Levitating:” bm7, f#m7, em7, bm7; “Live Your Life:” bm7, f#m7, em7, em7).[26] Further the melodies of both songs are very similar; both emphaze the same rhythm and scale degrees and have similar rhyme schemes and word choices.[27] All of these similarities seem to verge on being “substantially” the same, or are at least close enough to create a factual issue for a jury to decide.
Though the songs may sound the same (and can be layered over each other without it even being particularly apparent)[28] the abundant commentators on the internet have noted that the elements making up the similarities are not particularly unique to begin with.[29] The exact chord progression from “Live Your Life” can be found in songs predating both.[30] The melody in both choruses use the “Charleston” rhythm, found in countless songs both modern and historic.[31] Many other songs combine these same elements, again predating both “Live Your Life” and “Levitating,” including Outkast’s “Rosa Parks” (1988) (the best of these songs, by the way). As the internet commentators have noted, the same elements that could provide the basis for Dua Lipa’s liability would support Artikal Sound System’s liability, as well. All these facts are likely to come in as evidence at trial; the common usage of these elements is relevant evidence both that Dua Lipa did not copy Artikal Sound System and that the elements present in “Levitating” that Artikal Sound System alleges constitute infringement are not original protected elements.[32]
IV. Conclusion
Ultimately, absent a settlement, Dua Lipa’s liability will likely be determined by a jury of lay persons with minimal musical training or knowledge outside of what is provided by the experts in the case. This is not dissimilar, however, from any other area of the law requiring expert testimony and, in some sense, may be less problematic: even if a person wanted to, they could not be completely unaccustomed to music in some form.
[1] Gary Trust, Dua Lipa’s ‘Levitating” Makes History as the Longest-Charging Billboard Hot 100 Hit Ever Among Women, billboard (Mar. 14, 2022), https://www.billboard.com/music/chart-beat/dua-lipa-levitating-history-longest-charting-hot-100-1235043660/.
[2] Id.
[3] Jeremy Orosz, Dua Lipa’s ‘Levitating’ Plagiarism Lawsuit Could Change Music Forever, Slate(Mar. 17, 2022), https://slate.com/culture/2022/03/dua-lipa-levitating-copyright-infringement-plagiarism-case.html.
[4] Complaint at PageID 1–3, Cope v. Warner Records, Inc., 1:22-cv-01384 (C.D. Cal.filed Mar. 1, 2022).
[5] Id. at PageID 3.
[6] Id. at PageID 4.
[7] Id.
[8] Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018).
[9]Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018), overruled on other grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).
[10] Id.
[11] Williams, 895 F.3d at 1119.
[12] Rentmeester, 882 F.3d at 1117. The court in Rentmeester clarified that courts often use the term “substantial similarity” in reference to this prong and collapse the “copying” and “unlawful appropriation” tests altogether.
[13] Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1068 (9th Cir.), cert. denied sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 141 S. Ct. 453, 208 L. Ed. 2d 145 (2020), reh’g denied, 141 S. Ct. 946, 208 L. Ed. 2d 482 (2020).
[14] Rentmeester, 882 F.3d at 1117.
[15] Skidmore, 952 F.3d at 1064.
[16] Id.
[17] Id.
[18] Williams, 895 F.3d at 1119.
[19] Id.
[20] Skidmore, 952 F.3d at 1064.
[21] Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004).
[22] Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).
[23] Skidmore, 952 F.3d at 1064.
[24] Fed. R. Civ. P. 12. See Willaim F. Patry, 6 Patry on Copyright § 19:3-14. It alleges that Artikal Sound System owns the copyright to “Live Your Life,” that Dua Lipa had access, and that the songs share substantial similarities.
[25] Fed. R. Civ. P. 56.
[26] Adam Neely, Did Dua Lipa ACTUALLY Plagiarize Levitating? (Mar. 6, 2022), youtube.com/watch?v=HnA1QmZvSNs&t=228s.
[27] Id.
[28] Rick Beato, DUA LIPA VS REGGAE BAND LAWSUIT: Let’s Compare! (Mar. 3, 2022), https://www.youtube.com/watch?v=XT3DghWbk2A&t=189s.
[29] Neely, supra note 22.
[30] Neely, supra note 22 (discussing chord progression from Evil Woman (1975) by Electric Light Orchestra).
[31] Id.
[32] Patry, supra note 24, at §9:67 (“It is not enough to place two works back to back, if both track their ancestries back to Bach.” Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)).
