Just days after Dua Lipa was sued by a Florida reggae band, “Levitating” is the target of a second copyright infringement lawsuit, this time over the songs “Wiggle and Giggle All Night” and “Don Diablo.”
Any moderately successful songwriter can be sued for copyright infringement. But you really know you’ve made it when you’re sued two times over the same song in the same week.
The new complaint (read here) was filed late Friday by entities controlled by the composers of the disco song “Wiggle and Giggle All Night,” which was written by L. Russell Brown and Sandy Linzer and recorded by Cory Daye in 1979.
Interestingly, “Wiggle and Giggle All Night” was the subject of a previous copyright infringement case filed several decades ago involving “Don Diablo,” a Spanish song recorded by Miguel Bosé in 1980. After Bosé’s record company apparently admitted that certain parts of the two songs were “identical,” the copyright in “Don Diablo” was assigned to Larball Publishing Company and Sandy Linzer Productions, the plaintiffs in the new lawsuit against Dua Lipa.
Larball and Linzer now own the rights to both “Wiggle and Giggle All Night” and “Don Diablo.” Their lawsuit claims that “Levitating” is substantially similar to the melodies of both songs, and names a number of defendants, including Lipa, her co-writers, publishing companies and record labels.
Here’s the relevant portion of “Levitating,” which I’m guessing you may have heard once or twice already. The allegedly infringing segment starts about 9 seconds into the song.
Dua Lipa’s music video for “Levitating” has 123 million views
And here’s 1979’s “Wiggle and Giggle All Night,” at about 23 seconds in:
Finally, check out “Don Diablo” at about 18 seconds in:
Claimed similarities between “Don Diablo” and “Levitating” were actually the subject of a few articles, blogs and social media posts (mainly in Latina America and Spain) as early as two years ago, when Lipa’s song was first released. It’s unclear why the plaintiffs waited so long to file their complaint, but I suspect the timing may have something to do with Artikal Sound System’s lawsuit earlier in the week, which probably stole their thunder.
Do The Plaintiffs Have a Good Case For Copyright Infringement?
So do the plaintiffs have a case? In short, probably not. While there are certainly some similarities in the rhythm and chord progressions between the three songs, those similarities aren’t particularly original and likely aren’t protectable as a matter of copyright law.
A transcription of four bars from “Don Diablo” (DD), “Levitating” (LEV) and “Wiggle and Giggle All Night” (WG)
And frankly, if these similarities were actionable, a lot of other songwriters would need to be worried. There are number of songs that share similar chord progressions, most notably the campy 2002 pop hit “Asereje (The Ketchup Song)” by the Spanish girl group Las Ketchup, “Şımarık,” a 1997 song by Turkish singer Tarkan, and even the seminal “Rapper’s Delight” by The Sugarhill Gang.
“Las Ketchup” also shares a number of similarities with “Wiggles and Giggles,” “Don Diablo” and “Levitating”
Frankly, “Live Your Life,” the Artikal Sound System song that’s the subject of the other copyright infringement lawsuit filed against Dua Lipa, shares more similarities to “Levitating” than the songs at issue in the new lawsuit. They’re in the same key, and have a similar rhythm, chord sequences and vocal melodies. That said, elements like key and tempo aren’t protectable elements of a composition copyright in and of themselves. Ultimately, it’s really all about the melody, and the fact is that when ordinary (i.e. non-musical) people—like me—hear melody, we’re usually at least subtly influenced by other unprotectable factors such as the chord progressions and key, along with the performance itself.
The Bottom Line
There are tons of songs that sound alike as a result of similarities in basic chord progressions, but if they were deemed to be infringing, this would drastically limit the choices available to songwriters. After all, there are only 12 musical notes, and only so many progressions that sound pleasing to the human ear. As a result, coincidental copying is, in fact, a thing.
It’s true that melodies can be similar enough in certain cases to support a viable copyright claim, although they’re relatively rare as a practical matter. Unfortunately, however, most judges are as about as equipped to distinguish between infringing and non-infringing similarities as the average juror—which is to say, not very. And experts hired by the parties are of limited value because they’re, by definition, advocating on behalf of one side or the other. Unless judges are particularly specialized in this area, they should consider appointing independent music experts to avoid being influenced by elements that are in fact commonplace.
As always, I’d love to know what you think. Will Dua Lipa wiggle and giggle her way out of the new lawsuit? Let me know in the comments section or on one of the Copyright Lately social media accounts @copyrightlately. Meanwhile, a copy of the complaint is below:
