Nick’s article was published in Law.com International on 5 May 2022, and can be found here.
Following Ed Sheeran’s recent High Court victory, Dua Lipa is the latest pop singer to face claims for copyright infringement. The judge in Sheeran’s case ruled that his hit “Shape of You” had not plagiarised Sami Chokri’s song “Oh Why”. Dua Lipa now faces two separate actions in the United States for breach of copyright relating to her international hit “Levitating”, which has generated nearly 1m unique videos on TikTok.
The actions were launched last month just as Sheeran’s case was being heard. Florida-based Artikal Sound System was the first to file a claim in California for alleged copyright infringement of their 2017 hit “Live Your Life.”
Only days later, a second lawsuit in relation to “Levitating” was filed in New York by songwriters L. Russell Brown and Sandy Linzer, who allege copyright infringement and duplication in relation to two of their disco era songs, “Wiggle and Giggle All Night” and “Don Diablo”.
Brown and Linzer’s claim concerns the “signature melody” which they argue contributed to "Levitating" becoming such a success, especially on TikTok.
Music copyright disputes have a long history, sometimes involving substantial damages awards. In relation to his 1971 song “My Sweet Lord”, George Harrison was found to have engaged in “subconscious plagiarism” of the 1963 Chiffons hit “He’s So Fine”. Harrison had to pay $1.6 million in compensation.
More recently, Marvin Gaye’s family accused Robin Thicke and Pharrell Williams of plagiarising Gaye’s 1977 song “Got to Give It Up” in their 2013 international hit “Blurred Lines.” The lawsuit ended with a $5 million judgment in the family’s favour.
Whatever size of award is given, the same principle applies: copying needs to have taken place; no copying means no infringement. Although some notable differences exist between US and UK copyright law, many of the fundamental principles are similar.
Under English law, copying must be proved to have taken place, which frequently involves both music theory and copyright law concepts. If very similar songs are created by two people, entirely independently of each other and without any copying, then there is no infringement. Artists accused of plagiarism often claim to have created their material independently without any knowledge of the original song.
Song theft cases often involve a tricky interplay between the concepts of inspiration and infringement. The line between them is being continually tested. The key question in the actions against Dua Lipa will be whether what she (and her co-writers) wrote was in fact a copy of the claimants’ compositions. Dua Lipa will likely argue that the melody was independently created. Her legal team will probably seek advice from expert musicologists on objective similarities between her song and those which it has allegedly copied, and whether any significant copying took place.
No-one can own individual notes or everyday chord progressions. There are many commonplace musical elements – especially so in pop music. As basic musical building blocks, they are too generic to be protected. Accordingly, they are effectively deemed to be in the public domain since protecting them would severely restrict musicians’ ability to create. Understandably, defendants in plagiarism cases often try to demonstrate that any similarities between the two songs in dispute are based on generic elements.
Notably, Brown and Linzer’s lawyers have managed to inject humour into their allegations by including a few puns: “Defendants have levitated away plaintiffs’ intellectual property,” and “Plaintiffs bring suit so that defendants cannot wiggle out of their wilful infringement.” It remains to be seen whether they hold any sway with the judge.
More seriously for songwriters, the number of copyright claims is growing. In a recent Forbes article, a prominent US attorney commented: “These days, it feels like music copyright lawsuits are a dime a dozen.” Certainly “sound-a-like” infringement claims in respect of musical compositions are common.
Equally common is the misperception that cases like this are new. The history of copyright infringement in music stretches farther back than the Harrison case. In recent years, despite no changes to the underlying law, the appetite for litigation certainly seems to be increasing.
In a truly global music marketplace, a balance is needed between retaining the ability to innovate whilst taking inspiration from other musicians’ work and the need to protect the intellectual property of artists. Meanwhile, the willingness to seek redress over music copyright infringement through litigation shows no signs of letting up.