Don’t start now: Dua Lipa knocks out copyright claim

Dua Lipa hit the headlines recently following her successful defence of copyright litigation brought against her in the US relating to her 2020 hit Levitating.

The case was brought by the owners of copyright in a 1979 disco song called Wiggle And Giggle All Night (“Wiggle”) who claimed that the main melody from the verses of Levitating were substantially similar to the melody from the verses of Wiggle, but also of another song called Don Diablo. The plaintiffs owned the copyright in Don Diablo as a result of a settlement in separate litigation which they had brought claiming that that song was also a copy of Wiggle. Interestingly, the verse melody of Don Diablo was even closer to the melody featured in Levitating than the verse melody from the original Wiggle song, so the plaintiffs relied on their copyright in both songs. 

A comparison of the three melodies (once they had been transposed into the same keys) can be seen from the following extract from the Court’s judgment:

Despite these similarities, the Court concluded that there was no copyright infringement. It summarised the plaintiff’s claim to similarity to consist of “one descending scale plus one additional identical note”. Readers may recall the US Court decision in a similar case brought against Ed Sheeran in 2023 (concerning the allegation that “Thinking Out Loud” was copied from “Let’s Get It On”), where it was found that a chord progression and harmonic rhythm, in combination, was not on its own protectable by copyright. The Judge in this case followed that decision, concluding that the two elements relied on by the plaintiffs (descending scale plus one identical note) were incapable of constituting an original work entitled to copyright protection. The case therefore failed at the first hurdle. 

Described by the Judge as “a last ditch effort to salvage their claim”, the plaintiffs sought to rely at the hearing on additional common elements, including that the notes of the melodies were sung “in patter style”, the similar style of music (pop with a disco feel), the particular tempo and the fact that the melodies relied on appeared in the verses. The Court found that these additional elements also lacked sufficient originality, alone or in combination, to be protectable under copyright law.

This is the latest in a series of case, both in the US and the UK, where famous musical artists and bands have been sued for copyright infringement. No doubt this trend will continue given that there will always be songs which sound similar to each other, but potential claimants/plaintiffs would do well to remember the words of one US Court when it said “The seven notes available [in a diatonic scale] do not admit of so many agreeable permutations that we need to be amazed at the re-appearance of old themes”. 

You can listen to the relevant section of the three songs here:

Dua Lippa - Levitating (5 seconds in)

Cory Daye – Wiggle And Giggle All Night (24 seconds in)

Miguel Bose – Don Diablo (18 seconds in)

For our article on another unsuccessful case brought against Ed Sheeran in the UK in 2022, see here.