March 7, 2022 Musicology No Comments

This has got to be some sort of record.

Just a few days after Dua Lipa was sued because the chorus from her monster hit “Levitating” sounds so much like an Artikal Sound System track, “Live Your Life,” she finds herself sued a second time because someone else thinks she stole the verses too!

First, I’ll repeat what I said the other day: It’s possible she copied “Live Your Life’s” chorus, they sound a ton alike, but they sound like lots of other things too, and the whole hook is really one brief musical figure — a dotted eighth and sixteenth — repeated a few times over a four-measure chorus. Lipa could definitely have heard “Live Your Life” and channeled it, but it’s just as likely, maybe more likely, it’s just a coincidence.

They do sound a lot alike. They ARE a lot alike. But that’s not nearly how this works.

I have far less patience however for this newer accusation. We’re gonna look at this very quickly.

Here’s “Levitating,” if you’ve somehow not heard it a hundred times already.

Levitating’s verse, “If you wanna run away with me, I know a galaxy, And I can take you for a ride” is sung to sixteenth note figures (four notes to the beat) where the melody begins with four notes all sung the same pitch — the 5th degree of the minor scale, followed by four notes one step lower, then four notes one step lower than that, and continues that way down the harmonic minor scale two more times until the little ending figure as she sings, “for a ride.” 

Here’s the song that’s she’s accused of copying, “Wiggle and Giggle All Night.”

This song is from forty years ago, btw. It’s rather charming isn’t it?

But much of the perceived similarity here is because both melodies are so scale-based. And of course, nobody can claim ownership of a musical scale. Scales are common property. And this extends to some extent to exploitations of scale-based material, such as singing four notes on “Mi,” followed by four a scale step lower on “Re,” followed by four on “Do,” followed by four on “Ti” followed by four on “La,” which is exactly what “Wiggle and Giggle” is. It’s Mi, Re, Do, Ti, La. Does rhythm matter? Sure. But the less interesting it is, the less distinctive, the less it matters. It’s not binary, it’s a question of degree. And here there’s nothing novel.

Are the lyrics similar? No.

It would be true though that if such not-very-distinctive similarities were to continue and accumulate for an unreasonably long time, say, to the next musical thought, that would be more suspicious. Why bring that up?

Here’s Miguel Bosé’s “Don Diablo!”

It contains the same “idea” as “Levitating” and “Wiggle and Giggle,” with those rapid sixteenth notes descending along a scale. So we might initially expect to dismiss it the way we did with Levitating. But the possibly dismissable similarities keep accumulating. It goes on to change chords in the same way as Wiggle and Giggle does, and the melody figures also continue identically into the next section. In other words, the building block argument for coincidence is overwhelmed. Whether this was intentional or subconscious, this is extremely indicative of copying. And indeed, it is my understanding that the writers of “Wiggle and Giggle All Night” sued, won, and own the copyright to “Don Diablo” as well as “Wiggle and Giggle All Night.”

But it shouldn’t happen here with Levitating. The aspects of expression that they have in common are not especially unique to either work. So if we’re looking for conspicuous similarity we have to again look farther and perhaps wider, but instead of finding additional substantiating similarities, there we find differences.

In addition to being an application of an unprotectable scale, the rhythms are not identical. “Levitating” and “Wiggle and Giggle” start with the sixteenth idea, but both serve their respective lyrics. They’re not just simple groups of four sixteenth notes, but instead there are some pauses and emphases here and there. This is what we call “prosody.” In Wiggle and Giggle, the particular rhythmic figures aren’t even identical from one verse to the next because the lyrics change a little bit from verse to verse.

It’s not that they’re wildly different, it’s that here we raise the bar as appropriate. This is the nature of “thin” copyright. In effect, if you look at things from one perspective and find the evidence “thin,” you require it to be wide, or high, or both to be at all compelling. Musicologists are probability theorists in that way.

The real musicological hammer for the defense, I think, is that these two songs are in different modes. The plaintiff’s two songs, “Wiggle and Giggle” and “Don Diablo” are in a major key. Levitating is in a minor key. This means that while I could show you the respective notes looking very similar written out on a staff, or I might spell them out as identical note names in a chart, it would be a bit deceiving. In their true modal context, these notes, similar in letter names, have different functionality and different meaning in your ears. In terms of pitch, they’re alike only in their general shape or melodic arc.

To put it simply, these verses are similar only in a general sort of way that is not especially “probative of copying” as we say, meaning Dua Lipa didn’t need to have heard these songs to have written “Levitating.” It’s a less interesting claim I’d say than “Live Your Life.”

Written by Brian McBrearty