Dua Lipa’s “Levitating” lawsuit continues.

Introduction:

On March 4, 2022, Larball Publishing Company, Inc. and Sandy Linzer Productions, Inc. commenced a copyright infringement action against Dua Lipa and associated parties responsible for her hit track Levitating and its remix. Plaintiffs alleged that these songs unlawfully copied elements from their copyrighted songs Wiggle and Giggle All Night and Don Diablo.

Defendants' Motion to Dismiss

On August 8, 2023, District Judge Katherine Polk Failla issued an Opinion and Order denying Defendants’ request to dismiss the Plaintiffs’ claims relating to Wiggle and Giggle All Night under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Note: Defendants did not move to dismiss the claims relating to Don Diable.

To establish a claim for copyright infringement, a plaintiff must satisfy a duet of fundamental aspects - (i) ownership of a valid copyright and (ii) the unauthorized copying of the copyrighted work. To meet the unauthorized copying prong, a plaintiff must allege that the defendant actually copied the plaintiff’s work and that the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of a plaintiff’s work. Evidence of direct copying is often challenging to provide. Thus, a plaintiff may instead offer circumstantial evidence that “the person who composed the defendant’s work had access to the copyrighted material and that there are similarities between the two works that are probative of copying.” 

Just Enough “Wiggle”

Turning to Wiggle the Court held that Plaintiffs adequately alleged copyright infringement. The Court determined that Plaintiffs failed to plead that Defendants had access to Wiggle. Interestingly, however, the Court found that “Plaintiffs have alleged just enough facts to proceed to discovery on a theory of ‘striking similarity.’” Under this theory, Plaintiffs must prove that the songs are “so strikingly similar as to preclude the possibility of independent creation.” In other words, Plaintiffs will need to demonstrate not only 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.’” 

The Court acknowledged Plaintiffs providing side-by-side comparisons of each work's sheet music with respect to both "a repetitive rhythm" and a "signature melody."  Further, Plaintiffs alleged that the copied "signature melody" comprises approximately one-third of the total Levitating composition and provided a side-by-side comparison of the songs' rhythms and melodies.

Although this is a high bar to prove, the Court determined that it would be “improper...at this stage, to foreclose the possibility of [Plaintiff] clearing it.”

Summing Up

The Court held that "Plaintiffs have failed to allege a claim of copyright infringement as to Wiggle under an access theory, but are entitled to proceed to discovery in their striking similarity theory."