The first of the copyright infringement suits comes from Florida reggae band Artikal Sound System, which accused Lipa of copying its 2017 song “Live Your Life.” The second hails from songwriters L. Russell Brown and Sandy Linzer, who allege that Lipa stole from two of their songs — “Wiggle and Giggle All Night” (1979) and “Don Diablo” (1980).
Variety spoke with musicologists E. Michael Harrington, who consulted on Katy Perry’s “Dark Horse” case and was approached by Linzer and Brown in their attempt to defeat Lipa; and Judith Finell, who delivered the landmark expert testimony on behalf of the Marvin Gaye estate in the infamous “Blurred Lines” case.
While “Levitating” certainly shares similarities with the plaintiffs’ work, Harrington and Finell explain why determining infringement requires more than meets the ear.
“Sounding alike is almost always unimportant,” Harrington says, emphasizing that music of a particular style will generally be built upon the same musical ideas and motifs that define the genre.
Harrington emphasizes that in Western music, there are only 12 notes. However, the vast majority of popular music limits itself to a fraction of those, as there are only seven notes in the major scale.
Harrington compares it to having a conversation within the confines of the English language: “Sometimes this word leads to this word leads to that word. It’s the same with musical notes… What juries need to understand is that you can independently come up with the same notes without copying.”
As analyzed in a YouTube video by music theorist Adam Neely, both “Levitating” and “Live Your Life” are in the key of B minor and are around 100 beats per minute. Both choruses contain the chord progression Bm7-F#m7-Em7, but “Levitating” resolves on Bm7 (or, the “one”), while “Live Your Life” stays on Em7. According to Neely, the notes sung in each chorus relative to the key also share a similar pattern. It’s also worth noting the lyrics. The chorus of “Life Your Life” goes, “All day, all night / Party to the sunrise,” while “Levitating” follows a similar rhyme scheme and also contains the lyric, “I need you, all night / Come on, dance with me.”
Says Neely: “The melodies of ‘Levitating’ and ‘Live Your Life’ are nearly identical. The same notes of the key are being targeted on the same beats with the same rhythm… which is called the Charleston: a dotted eighth followed by a 16th note followed by a rest.” Despite this, Neely says he doesn’t think Artikal Sound System has grounds to sue.
While at face value, the sound recordings do sound similar, it’s important to remember that musical aspects like the key, tempo and instrumentation are not protected by copyright law. The supposed lyrical similarities? According to Harrington, suggesting that using a few “common” words in a pop hook is infringement is “silly.”
According to Finell, what’s protected by copyright are “specific series of expressions of music — not ideas, but expressions. That means a series of lyrics, a series of pitches or rhythms that formulate a melody, a series of chords or harmonies, and other kinds of identifiable features. Songs can share style and not end up in a copyright suit. But when they share real, serious identifiable creative traits that are protected by copyright law… that’s when lawsuits occur.”
Both “Wiggle and Giggle All Night” and “Don Diablo” share a similar vocal melody in the verse to “Levitating,” but no other major musical similarities are present.
For a plaintiff to win an infringement suit, one of the things they must prove is that the defendant had access to their work, showing that the defendant could have had the chance to reasonably view or copy it. There are three theories of access plaintiffs may use: the chain of events theory (proving that the protected work was passed on to the defendant), a combination of wide dissemination and subconscious copying (proving that the protected work was widely distributed by means of radio, television or the internet) or showing striking similarity (proving that the two works are so similar that there is no other explanation but copying).
It’s likely that Artikal Sound System hopes to demonstrate striking similarity, as in their suit the reggae band claims the songs are so similar that it was “highly unlikely that ‘Levitating’ was created independently.”
In the other complaint, Brown and Linzer’s attorneys point to interviews in which Lipa “admitted that she deliberately emulated prior eras” and “took inspiration” to create a “retro” sound. Emulating eras and taking inspiration to create a retro sound, however, are far from copyright infringement.
One of the focal points of the “Blurred Lines” trial was a 2013 GQ interview, in which Robin Thicke said, “Pharrell [Williams] and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.'” While, again, inspiration does not equal infringement, the quote provided the Gaye estate with an explicit connection between “Got to Give It Up” and “Blurred Lines,” and it worked against Thicke and Williams in the trial.
The songwriting process of “Levitating” is also well documented, but in this case it works in Lipa’s favor. Specifically, in a 2020 episode of the podcast “Song Exploder,” the pop star and her collaborators break down how the introductory synth loop “almost immediately” led to the creation of a verse and chorus melody.
Finell notes that the creative process behind the music ultimately does not influence the “similarity level.” However, it is one of many extramusical factors that can end up influencing a jury.
Perhaps the biggest hurdle for Artikal Sound System, Brown and Linzer is that all of the considered works draw on prior art.
“There are 140,000 words in the copyright law. The most important is original. It says, ‘Copyright protection subsists in original works of authorship,'” Harrington says. “There are rulings that say something’s not sufficiently original to deserve protection.”
In other words, while the plaintiffs claim that Lipa infringed on their copyrighted expression, the very ideas they claim as original can be found in numerous examples of earlier songs, rendering their case for originality quite flimsy.
Neely points out that the Charleston rhythm is nothing new, and has been used prominently in songs by the Jackson 5, DNCE and, perhaps most notably, Outkast’s “Rosa Parks,” just to name a few. The chord progression of “Live Your Life” is also extremely basic and can be heard in earlier songs like “Evil Woman” by Electric Light Orchestra. Per Harrington, the core melody in “Wiggle and Giggle All Night” and “Don Diablo” appears in an earlier Hank Williams song.
In order to determine infringement, the plaintiffs must prove that their own work is sufficiently original. In this case, that might be an uphill battle.
What happens next?
While it’s possible that these lawsuits will go before a jury, Lipa may also seek to settle outside of court, a trend that has seemingly increased in the years following the “Blurred Lines” case.
After the ruling, Thicke and Williams’ attorney Howard King told Rolling Stone, “I feel like I’ve let songwriters around the world down by helping establish this horrible precedent that somebody can make a claim based upon a song that sounds the same, yet is materially different — and if they can find eight people who don’t read music, they might win.”
While the impact of that suit may have been overstated in the years immediately following it (Finell says there are “a lot of misperceptions about the ‘Blurred Lines’ case and its impact on creativity,” while Harrington admits that the number of frivolous copyright suits “seems to have calmed down”), for a few years it seemed like some sort of doomsday for songwriters. For example, in 2015, Jidenna ceded preemptive writing credit to Iggy Azalea for his song “Classic Man” for fear of going to court. He said on Hot 97, “Ever since the decision of Robin Thicke and Pharrell, we believe that it was important to make sure that we are safe. When that Robin Thicke verdict came out, we realized that the game had changed in music.”
The “Blurred Lines” case united musicians against what they saw as frivolous lawsuits. In 2016, 212 artists, composers, producers, musicologists and other music professionals banded behind Thicke and Williams and filed an amicus brief, in which they argued that the court must reestablish “limits on the scope of copyright, to ensure that future downstream authors and creators are able to draw from the wellspring of existing works.”
Harrington says that he, and presumably the other musicologists contacted by Brown and Linzer, declined involvement in the Lipa suit because he feels strongly that “Levitating” is not an example of copyright infringement. With prominent music theorists denouncing the litigation and expert witnesses hesitant to join the fight against Lipa, only time will tell whether the pop star will face legal consequences, settle outside of court or come out unscathed.
Below are each of the works in question. You be the judge.