Last week, a little-known South Florida reggae band, Artikal Sound System, filed a copyright infringement suit against Dua Lipa, accusing her of lifting elements of one of their songs for her 2020 hit “Levitating.” A few days later, the pop star was slapped with yet another infringement lawsuit by songwriters L. Russell Brown and Sandy Linzer alleging that she plagiarized their work on “Levitating” too.
The first suit claims Dua Lipa ripped off Artikal Sound System’s 2017 song “Live Your Life.” Attorneys for the group didn’t back up that claim with any hard evidence. Instead, they simply alleged that she and her co-writers “listened to and copied ‘Live Your Life’ before and during the time when they were writing ‘Levitating.’” They added that the songs are “substantially similar,” and though they didn’t explain how, even a casual listener can hear parallels between the two.
The second suit claims Dua Lipa cribbed the vocal melody from two of Brown and Linzer’s songs: 1979’s “Wiggle and Giggle All Night” and 1980’s “Don Diablo.” (The two disco-era tracks share a nearly identical melody.) Brown and Linzer’s suit is much more detailed and compares musical notations of their work against Dua Lipa’s bar-for-bar. While the suit doesn’t explain exactly how or when Dua Lipa and her co-writers allegedly heard “Wiggle and Giggle All Night” or “Don Diablo,” it argues that they had “reasonable access” to them, given that both songs are widely available on streaming platforms.
To better understand the viability of these lawsuits, I called up Richard Busch, an attorney who specializes in copyright infringement cases and who made a name for himself when he won a $5 million infringement suit over Pharrell and Robin Thicke’s “Blurred Lines.” He explained what legal hurdles plaintiffs suing for infringement have to overcome, how strong the suits against Dua Lipa are, and how they might play out.
VICE: What do copyright infringement lawsuits like these need in order to prevail in court, or at least to force a defendant like Dua Lipa to settle?
Richard Busch: You have to show your work is original, and you have to show some theory of access, meaning that [the defendant] had a reasonable ability to access it. Then you get to substantial similarity, which is a two-step process.
There’s what’s called the extrinsic test and the intrinsic test. The extrinsic test is where the court kind of compares, compositionally, the substantially similar portions [of the two songs] with the help of musicologists. So if a musicologist can support the fact that these are substantially similar, compositionally, then they should be able to get past that stage. And then the jury performs the same kind of function, and just decides whether they think it sounds substantially similar, which is the intrinsic test.
Would the plaintiffs need to actually prove Dua Lipa and her co-writers listened to their songs?
You don’t have to prove that they actually had the music in the studio and they were listening to it. Unless you have a smoking gun of some kind, that’s going to be hard to do. You just need to show that there’s some reasonable [possibility] they had access.
How strong do you think these two cases are?
I don’t think either of these cases are frivolous. When you listen [to the songs in question], you definitely hear the similarities. But with respect to the Artikal Sound System lawsuit, my first reaction was that the lawsuit was completely bereft of any real factual allegations. It’s, like, a page-and-a-half [long]. It says the two works are substantially similar, but it really doesn’t give you any details on access or originality. And our review of their work shows that it’s not currently available for streaming on Spotify, nor on any of the major DSPs [Digital Service Providers]. And on YouTube, most of their views, it appears, occurred after the lawsuit was filed. [Ed. note: “Live Your Life” is not currently available on Artikal Sound System’s YouTube page. Other uploads of the song appeared on YouTube about a week ago.] So how they could show access is going to be a challenge on that one, even though when you listen, it certainly sounds pretty close.
The other lawsuit does a decent job. It actually has notations. It shows where the works are substantially similar. And there’s a lot more detail, which gives it a lot more credibility.
As you noted, the Artikal Sound System suit is pretty bare bones. While they allege Dua Lipa’s song sounds like theirs and that she had access to it, they don’t provide any evidence to back up those claims. What did you make of that?
This first lawsuit begs for a motion to dismiss. In a federal court lawsuit, you have to show a plausible likelihood that you can prevail, and you have to set forth facts that show your allegations are plausible. Here, there are none. It’s so sparse. There’s nothing there. So I think that the first lawsuit, there will be a motion to dismiss, and then the court will give the plaintiff the ability to replead.
If they have any [further facts to add], we’ll see a pleading that will have much more detail. My concern is that this song is not available anywhere that I could find. It’s one thing when you have a song like [Marvin Gaye’s] “Got to Give It Up,” which everyone in the world has heard. There, access is not an issue. It’s another thing when you have a song that you can’t find anywhere, that’s not being played on digital services anywhere. How are you going to prove access? That’s going to be a challenge.
Although, I had a case years ago involving Christina Milian’s “Dip It Low,” which had this Peruvian chorus. My clients were in this Peruvian band 20 years earlier. They had, like, 500 records printed. And it turns out that Christina Milian’s producer was shopping at a secondhand store and came across that album—one of 500 that exists in the world—and used it. So crazy things happen.
In their complaint, Brown and Linzer’s attorneys compare the musical notation of these three songs bar-for-bar. What did you make of that?
That’s the most relevant thing they did. Now you’re pleading facts that support your substantial similarity claim. So it’s the right thing to do. I always tend to do that.
Brown and Linzer’s attorneys argued that because their songs are on Spotify, Amazon Prime Music, Pandora, etc., Dua Lipa had reasonable access to them. Is that a strong enough argument to demonstrate access in your view?
I’d say yes. At this stage, how else are you going to plead access? Absence of a smoking gun, that’s what you need to plead. So I think it’s good enough.
How do you think Brown and Linzer’s lawsuit is ultimately going to play out? Do you think Dua Lipa and her co-defendants will fight it, or just settle it?
It depends on what the plaintiff wants. If the plaintiff wants something that makes it easy for Dua Lipa to settle and just move on, then she might consider doing that. But [“Levitating” is] a big song. I’m sure [the plaintiffs] are going to want a lot of money. In a copyright infringement case, you can get actual damages, which would typically be the percentage of the song you would have negotiated for had they come to you for a license. Plus, you can get the profits of the defendant that are attributable to the infringement. So depending on what a musicologist comes up with—if they say the use is worth 50 percent of the song—then they’re going to go after 50 percent of profits. And that’s going to be a lot of money. In that case, she’ll probably want to fight it.
It also depends on what she knows. If she knows that they’ve got her, and that [she] used [the plaintiffs’ song], then she’ll probably want to settle. On the other hand, if Dua Lipa feels that she didn’t do anything wrong, and she didn’t listen to this song, and it’s mere coincidence, she may fight. Especially if they want a lot of money.
How much money would you estimate might be on the line here?
We’re talking about $10 or $15 million, probably, in ultimate profits, depending on uses, sync licenses, concert revenue, and touring revenue. If a musicologist says the use [of Brown and Linzer’s song] is worth 50 percent, then you can do the math: They’d be going after 50 percent of the profit. I’m sure she’s not going to want to give that up. I’m sure the other writers and producers aren’t going to want to give up their share. But if the plaintiff says, “Listen, I’ll take $200,000,” then they’ll probably settle.
Drew Schwartz is a staff writer at VICE. Follow him on Twitter.