“Levitating” the Stakes in Copyright Infringement Lawsuits?

In 2020, Dua Lipa’s “Levitating” hit the charts where it has largely remained in the Top 100 – shooting up as high as Number 2 on Billboard’s Hot 100 (and snagging the title of 2021 Billboard Hot 100 Song of the Year). But where it used to be fairly common to listen to a hit, hear beats from another hit within, and shrug that ‘all music is derivative,’ many now listen to hits with ears tuned in to discover familiar beats and with pens ready to draft copyright complaints.

Such was the case for “Blurred Lines” back in 2015 – the Robin Thicke and Pharrell mashup (clean and explicit videos and all). The 2013 hit had instantly wormed its catchy beat in countless ears (“I know you want it”), including those of the family of the late Marvin Gaye, who found the lines between “Blurred Lines” and Gaye’s “Got to Give it Up” quite blurry indeed. 

Gaye’s family found those lines so blurry that it filed a copyright infringement suit in California. The drawn-out litigation and trial – featuring musicologists, arguments about the different rights one can possess in sheet music, and differences between the music you see on a page versus music you hear – resulted in a jury award of 7.3 million dollars to the Gaye family, surpassing the previous high dollar award for copyright suits (a 5.4 million dollar judgment against Michael Bolton for lifting parts of the Isley Brothers’ “Love is a Wonderful Thing” for use in his own creatively titled 1994 hit “Love is a Wonderful Thing”). [1]

Now, Dua Lipa faces two separate copyright suits aimed at “Levitating[‘s]” similarities to 2017 reggae record “Live Your Life” (by Artikal Sound System), 1979’s “Wiggle and Giggle All Night” (by Cory Daye), and 1980’s “Don Diablo” (by Miguel Bose). [2] [3] 

The lawsuits already have set social media platforms on fire with a sharp divide between those who believe Levitating copied the earlier records and those who believe that any similarities are simply coincidences which are bound to happen when you have countless songs but a very countable universe of enjoyable chord progressions. 

But where the “Blurred Lines” suit involved similarities that could not eventually be explained away – a comparison of the intros alone make you glad that you didn’t sit near Thicke or Pharrell on testing days in middle school – the “Levitating” suits raise important questions about the boundaries of copyright infringement liability, ones that artists and attorneys alike will be following closely. The “Levitating” suits will cause courts and juries to ask just how much of something must be like something else in order to give rise to liability. For instance, “Levitating” only seems to be similar to the previous works when small snippets are played or if short sections of sheet music are compared, but if those small snippets or sheet music segments are enlarged at all, “Levitating” seems quite different.

As much as the cases will be about the different works of art, the cases will be about how the material is presented to a jury. Strategy regarding courtroom exhibits and what a jury hears or sees might make or break cases where damages would likely set a new copyright high-water mark if awarded. 

And that raises a larger question – if whether or not a party is found liable and forced to pay millions of dollars in damages (along with enormous amounts of attorneys’ fees) depends mainly on the way evidence is presented at trial, then is it time for everyone to take another look at music copyright liability and how we protect artists’ creative work while still allowing room for new work to be created?  

When all is settled with the cases against Dua Lipa, someone is going to feel like dancing all night – but regardless of who that is, will we have levitated the bar for copyright infringement or the burden on artists? Stay tuned.

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[1] https://variety.com/2015/music/news/blurred-lines-verdict-pharrell-robin-thicke-ordered-to-pay-7-3-million-to-marvin-gaye-family-1201450117/

[2] https://www.billboard.com/business/legal/dua-lipa-accused-stealing-levitating-artikal-sound-system-lawsuit-1235037859/

[3] https://www.theguardian.com/music/2022/mar/07/dua-lipa-faces-second-copyright-lawsuit-over-hit-song-levitating

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