California district court dismisses copyright infringement suit against singer Dua Lipa and Warner Records for hit song “Levitating,” holding that plaintiffs failed to adequately plead that defendants had access to plaintiffs’ song and declining to address substantial similarity before expert testimony is presented.
Plaintiffs, members of the band Artikal Sound System, brought a copyright infringement suit against singer Dua Lipa, her collaborators and Warner Records over the hit song “Levitating,” claiming that “Levitating” infringed upon plaintiffs’ 2017 song “Live Your Life.” Defendants moved to dismiss the case for failure to state a cognizable claim and pointed to two deficiencies in the complaint. First, defendants argued that plaintiffs failed to adequately plead that defendants had access to plaintiffs’ work. In a copyright infringement suit, absent direct evidence of copying, a plaintiff must prove that a defendant at least had access to the plaintiff’s work, which can be shown by alleging that the plaintiff’s work was “widely disseminated” or by describing a specific “chain of events” leading to the defendant’s access. The district court found that plaintiffs had failed to properly allege either theory. During the period in which defendants wrote “Levitating,” plaintiffs alleged that they performed “Live Your Life” at an unspecified number of live performances, sold “several hundred” physical copies of the song and placed the song on streaming platforms. But the court found that these allegations did not demonstrate the “substantial” commercial success required to support a finding of wide dissemination. Notably, courts in the Ninth Circuit and elsewhere have consistently held that “the mere availability of a work online is insufficient to establish widespread dissemination.” Furthermore, plaintiffs failed to describe a specific chain of events demonstrating access, only providing an attenuated list of common contacts bearing little connection to either of the two songs at issue here.
Second, defendants argued that plaintiffs failed to plead that the works are “substantially similar.” The court declined to address this argument at the motion to dismiss stage. Plaintiffs’ theory of substantial similarity depended entirely on the nonverbal components of the compositions, not similarities between the songs’ lyrics. On a motion to dismiss, a court must apply the “extrinsic test” for substantial similarity, analytically dissecting and comparing the two works. However, because the Ninth Circuit has cautioned against applying the extrinsic test to a musical work without expert testimony, the court declined to address the question of substantial similarity until the parties present their evidence. Because the court found that plaintiffs had failed to adequately plead copying, however, it granted defendants’ motion to dismiss with leave to amend.
Summary prepared by David Grossman and Brandon Zamudio