Dua Lipa, Ed Sheeran, Katy Perry and Robin Thicke. At first glance, these names look like a list of some of the highest-paid singers at one time or another. But if you were to ask certain copyright lawyers working in the industry, they might tack on a slightly more controversial label — a group of shameless plagiarists looking to make a buck off someone else’s work.
Dua Lipa was hit with another copyright lawsuit March 4 over her 2020 dance anthem “Levitating,” making it the second complaint of infringement against the song this month. A few days prior, reggae band Artikal Sound System had filed a suit asserting infringing similarities between the respective choruses of “Levitating” and their 2017 song “Live Your Life." Now, songwriters L. Russell Brown and Sandy Linzer are alleging that Lipa lifted her song’s opening melody from their 80’s tracks “Wiggle and Giggle All Night” and “Don Diablo.”
“Defendants have levitated away plaintiffs’ intellectual property,” lawyers for Brown and Linzer wrote in an unusually jocular court filing. “Plaintiffs bring suit so that Defendants cannot wiggle out of their willful infringement.”
The duo’s legal team is arguing that Lipa’s desire to invoke memories of the 70’s and 80’s on her album “Future Nostalgia” led her to copy-protected works. The legal storm surrounding “Levitating” is the latest in a wave of lawsuits targeting chart-topping pop hits, which tend to draw on a relatively limited set of chord progressions and melodic patterns.
In 2015, a unanimous jury awarded the Marvin Gaye family $7.4 million in damages after finding that the drum beat to Robin Thicke’s “Blurred Lines” bore substantial similarities to that of Gaye’s “Got to Give It Up.” The verdict drew scorn from musicologists, and over 200 musicians around the world — Hans Zimmer, Linkin Park, Train, Fall Out Boy and Rivers Cuomo of Weezer among them — argued in a “friend of the court” brief that inspiration is at the heart of all creative work and demands ample legal protection.
Despite the group’s efforts, the landmark “Blurred Lines” ruling opened the floodgates for other multimillion-dollar lawsuits staking out even more inventive legal claims. One such lawsuit against Ed Sheeran for “Thinking Out Loud” articulates a questionable theory of “functionally equivalent” chords, asserting ownership over not just a single chord arrangement, but others that provide similar harmonic backing.
As a growing chorus of industry observers are warning, similarities between works are inevitable considering the immeasurable number that exist in the world and the fundamental quality of music as rooted in existing patterns, rather than concocted from scratch. Advances in technology have exacerbated the issue by enabling rights holders to scan entire databases of songs for close matches. U.Va. Law Professor Dotan Oliver notes this problem in a published work, writing that “music and film industries [have] started employing unprecedented measures to fight piracy, such as technological self-help measures.”
As a result, forensic musicologists — experts trained in the analysis of music from a legal lens — are reportedly experiencing their “busiest years ever” due to the sheer number of lawyers hoping to build a case. But some music enthusiasts are leveraging online platforms to push back against the winds of litigiousness.
Adam Neely is a bass player, composer and YouTuber whose videos on high-profile copyright controversies receive millions of views. One video essay titled “Why the Ed Sheeran lawsuit makes no sense” takes a deep dive into the history of Western music, documenting a tradition of borrowing and reworking basslines that spans from medieval hymns to 20th-century jazz. The notion that transforming existing melodies is stealing someone else’s work, instead of extending it, is the relatively novel brainchild of media conglomerates who have lobbied and sued for tougher copyright restrictions.
Neely’s recent video on “Levitating” dissects the structure of the song's chorus, specifically the words “Moonlight / You're my / Starlight.” He identifies a recurring, pop-flavored twist on what is known in jazz as the “Charleston rhythm.”
In music theory terms, this would be a dotted eighth note for “Moon” and sixteenth note for “-light” followed by a rest. “Levitating” by Dua Lipa and “Live Your Life" by Artikal Sound System share this rhythm and several notes, which is what makes a mashup of both so seamless. But yet another uncannily close match can be found in Outkast’s “Rosa Parks,” which was released in 1998, roughly two decades before the two songs in question. Following the logic of Artikal Sound System’s lawsuit might lead one to conclude that Artikal’s song infringes on Outkast’s intellectual property.
Recordings from early studio sessions of “Future Nostalgia” appear to show Dua Lipa arriving at the song chorus and opening through improvisation, which may be another piece of evidence for her defense against Artikal and separately, Brown and Linzer. If the two cases go to trial, jurors in each will have to resolve legal questions including what elements of the plaintiffs’ works deserve legal protection, whether Lipa could have had access to the works and if a reasonable person would find them substantially similar to “Levitating.”
Until copyright reform is won through the courts or Congress, the music industry is coping with a legal environment that weaponizes faint resemblances between works. In a lecture uploaded for his Media Law class, Media Studies Professor Siva Vaidhyanathan commented on how this environment reverses copyrights’ intentions from supporting artists to restricting them.
“I had always assumed that copyright was important to protect artists,” Vaidhyanthan said, “[to] make sure that people aren’t selling illegal copies of their work on the sidewalk…But I started thinking, ‘Wait, copyright goes deeper? It goes down into the song? It restricts elements of the song? It restricts how people might do a new version of the song?’”
Some artists are getting ahead of even tenuous copyright claims by voluntarily granting writing credits — and thus, a cut of royalties — to potential litigants. “Mob Ties” by Drake credits rapper Nas for an instrumental melody inspired by “Affirmative Action,” despite significant differences in notes, key and mode, instrument choice and timbre. And last summer, Olivia Rodrigo added the songwriters of Paramore’s “Misery Business” to the writing credits for “good 4 u,” leading one artist to conclude that “any optimism that a post-’Blurred Lines’ chill might be thawing…is dead.” Other creators are going further, reportedly changing parts of their songs that “'feel' like something else.”
But these workarounds only highlight the unprecedented chilling effect costly lawsuits are having on artists struggling to create new music. After all, copyright is intended to protect and encourage innovation by rewarding the unique intellectual contributions of creators. But it has the exact opposite effect if it suffocates the authentic expression of musicians who build on top of the contributions of those that came before them — and are laying new foundations for those that come after.