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Dua Lipa’s Lawyer Makes Arguments To Dismiss Levitating Song Theft Lawsuit

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By Chris Cooke | Posted on Friday, September 2, 2022

Dua Lipa’s attorneys have presented some key arguments as to why one of the song theft lawsuits filed in relation to her 2020 hit “Levitating” should be dismissed. Basically, there is simply no evidence that Dua Lipa and her collaborators ever heard the two songs they are accused of stealing.

Because, yes, in the second of two copyright lawsuits targeting ‘Levitating’, plaintiffs L Russell Brown and Sandy Linze claimed that the Lipa track actually lifted elements of two songs they wrote. at the time: 1979’s “Wiggle And Giggle All Night” and 1980’s “Don Diablo”.

But, Lipa’s lawyer, Christine Lepera, wrote in a letter to the court earlier this week, “the alleged similarities – a descending scale in which each pitch is repeated in evenly spaced notes, and a common clave rhythm – are unprotectable, and the result of the fortuitous use of the basic musical building blocks”. And, perhaps most importantly, “the writers of ‘Levitation’ never heard the [earlier] compose”.

Of course, to show that a song infringes the copyright of an earlier song, you must prove that the creators of the later work had access to the earlier work, as well as show that all similarities are sufficient. to constitute copyright infringement.

Unless there is strong evidence that the creators of the later song deliberately decided to rip off the previous song, you have to make some sort of assumption about how those creators heard the music they are accused of having drawn.

If the earlier work is super famous – and therefore widely circulated and known – it’s relatively easy to do. But if it’s not super famous — and usually in cases like this it isn’t — then claimants need to be more imaginative in their assumptions.

It usually involves building some sort of six-degree-of-separation style chain within the music industry along which you argue that previous work should be passed on to the creators of the new track.

Or, if all else fails, you can try the line “Well, the older tracks were streaming, they probably heard it there.” Although the latter strategy is increasingly being rejected in court due to the large amount of music being streamed.

Lepera reviews Brown and Linze’s various efforts to prove access in his letter, then separates each effort.

“The complaint does not allege widespread circulation of ‘Wiggle’ and ‘Don Diablo’,” she wrote. “As to ‘Wiggle’, the complaint merely alleges that it achieved some success in the Netherlands four decades ago. This does not establish ‘saturation’ and there is no allegation that the songwriters of ‘Levitating’ were in the Netherlands – or, in fact, were even born – at that time”.

“As to ‘Don Diablo’,” she continues, “the complaint alleges that it was performed at certain times in Latin America; again, these allegations do not establish ‘saturation’ or that ‘Levitating’ writers participated in the Latin American market at the relevant times”.

What about a claim of six degrees of separation? “The complaint does not plausibly allege a particular chain of events leading to the access,” argues Lepera. “Instead, the complaint alleges that ‘Wiggle’ and ‘Don Diablo’ were both ‘published by labels which are now under the Sony umbrella’, and that one of the publishers of ‘Levitating’ is a Sony affiliate company, Sony Music Publishing”.

But that’s not really a strong enough bond. And to confirm that this is so, Lepera cites legal precedent as follows: [plaintiffs’] work, without any allegation of a link between the recipients and the alleged perpetrators of the offence, is not sufficient to raise a justiciable question of access”.

And finally, “the complaint [also] alleges that the defendants had access to “Wiggle” and “Don Diablo” because they “can be found on popular streaming services”. However, many millions of musical recordings are available on “streaming services”, and the mere availability of recordings on such services does not establish wide circulation”.

So, there you have it, the court should dismiss this lawsuit for failing to prove access before even determining whether the similarities between “Levitating” and “Wiggle And Giggle All Night” and “Don Diablo” violate human rights. ‘author ; which, of course, Lepera would say they don’t.

The real purpose of this week’s letter was to request “a conference before filing [a] motion to dismiss”, counsel noting, “This is a remedy to which the plaintiffs do not consent”.

We are waiting to see how the judge hearing the case will respond. Meanwhile, a legal representative for Brown and Linzer told Billboard that they would submit a “full rebuttal” to all statements in Lepera’s letter.

“‘Don Diablo’ had around 20 million views on YouTube alone with thousands of listeners noting that ‘Levitating’ sounded like ‘Don Diablo’ long before this lawsuit was filed,” they added. “We look forward to asserting our clients’ rights in court and for some of these incredible artists of today to pay homage to legendary songwriters of the past.”

As noted, this is one of two song theft lawsuits related to “Levitating.” Florida-based band Artikal Sound System also went legal by acknowledging that Lipa’s hit was taken from his 2017 track “Live Your Life.” We await a formal and, presumably similar, response from the Lipa team on this claim.

LEARN MORE ABOUT: Dua Lipa | L Russell Brown | Sandy Linze