District court denies motion to dismiss copyright infringement claim over Dua Lipa’s chart-topping hit “Levitating,” finding that plaintiffs failed to allege that defendants had access to plaintiffs’ song but alleged enough facts to proceed to discovery on theory of striking similarity.
Larball Publishing Co. Inc. and Sandy Linzer Productions Inc. own the copyright to a 1979 disco song titled “Wiggle and Giggle All Night” and became copyright holders of a song named “Don Diablo” through a separate litigation. Plaintiffs brought a copyright infringement lawsuit against acclaimed recording artist Dua Lipa, record producers and publishing companies alleging that they infringed the copyrights in both songs by creating and exploiting the more recent Dua Lipa hit “Levitating.” Specifically, plaintiffs claimed “Levitating” copied the “repetitive rhythm” and “signature melody” of “Wiggle.” Defendants moved to dismiss the claims as to “Wiggle.” The court denied the motion to dismiss, finding that although plaintiffs failed to allege that defendants had access to “Wiggle,” plaintiffs had alleged “just enough” facts to proceed to discovery on a theory of striking similarity.
As a threshold matter, defendants argued that plaintiffs impermissibly conflated the allegations as to each of the allegedly infringed songs—“Wiggle” and “Don Diablo.” Although plaintiffs occasionally referred to the songs collectively as the “Original Works,” this did not defeat plaintiffs’ claims, the court stated. Plaintiffs alleged facts regarding the components of each work that were allegedly infringed and argued the specific means by which defendants allegedly accessed each song, according to the court.
Moving to the merits, the court first addressed defendants’ argument that plaintiffs failed to allege that they owned a valid and registered copyright because the copyright registration number was not cited in the complaint. The court rejected this argument, taking judicial notice of the registration number provided by plaintiffs in their opposition brief and found that plaintiffs adequately alleged the existence of a valid copyright.
Plaintiffs advanced two theories of access to “Wiggle.” First, plaintiffs relied on the corporate receipt doctrine, alleging that one subsidiary of defendant Sony Music Publishing published “Wiggle,” while another distributed royalties for “Don Diablo.” The court rejected that argument. Crucially, Sony was not alleged to have published “Levitating” or to have been associated with its authors. The court therefore held that plaintiffs failed to establish a connection between Sony and any of the creators of “Levitating” or to explain how the other defendants who did create “Levitating” were a “part of the Sony family.” The court noted that, even if plaintiffs had alleged a connection between Sony and “Levitating,” merely locating two works under the same corporate umbrella is not a plausible allegation of access.
Plaintiffs also argued that “Wiggle” was widely disseminated based on its nine-week run on the Dutch music charts from 1979 to 1980 and its “significant popularity in Dutch nightclubs.” The court rejected this argument, as it did not create a “realistic likelihood” that defendants had heard “Wiggle.” Plaintiffs did not allege that any of the defendants involved in creating “Levitating” lived in the Netherlands or were musically active during that time period. The court noted that Dua Lipa was not even born until 15 years after the nine-week run of “Wiggle” on the Dutch music charts.
The court also rejected plaintiffs’ argument that the mere availability of “Wiggle” on streaming sites equated to wide dissemination, noting that this argument “runs counter to the clear weight of authority in this Circuit” and that “more than literal availability on the public marketplaces is required.” Plaintiffs also alleged that defendants had admitted to being inspired by musical stylings from earlier decades in creating the album on which “Levitating” appears. But the court held those generalized allegations insufficient to establish access to “Wiggle” specifically.
Plaintiffs’ final argument regarding wide dissemination involved allegations as to the popularity of other works affiliated with the creators of “Wiggle” and their career accolades. The court rejected this argument as well, limiting its analysis to the copyrighted work in question.
While plaintiffs failed to prove access, the court found that they alleged sufficient facts of striking similarity for their claim to survive at the motion to dismiss stage. The court noted the “specificity and technical nature” of plaintiffs’ allegations. Plaintiffs provided side-by-side comparisons of the sheet music of the works, which purported to illustrate a “repetitive rhythm” and a “signature melody” that defendants copied in “Levitating,” and noted that a bass drum accompanies the rhythm in both works. Plaintiffs also alleged that the copied “signature melody” comprises approximately one-third of “Levitating” and was “nearly identical” and “essentially unchanged” from “Wiggle.” The court found plaintiffs’ focus on the melody crucial, as courts have described the melody as music’s “most important feature.”
The court also considered plaintiffs’ allegations that industry commentators and lay listeners have independently observed similarities between the competing works. Coupled with plaintiffs’ technical allegations, the court found it could not confidently claim that no reasonable jury could find striking similarity.
The court also held that complete identity of the competing works is not required to plausibly plead striking similarity and that defendants’ argument that “expert testimony is generally necessary to establish striking similarity” in technical areas such as music undercut their own argument and further convinced the court that the lawsuit should proceed to discovery. The court cautioned, however, that “proving striking similarity as a factual matter will be a tall task” given the “limited repertoire of notes and chords available to composers.”
Summary prepared by Tal Dickstein and Alex Loh