March 7, 2022 Musicology No Comments

Not in any way that matters, it isn’t.

And by the way, 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 quite a bit 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 plausible 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. In the end, I expect Lipa to prevail in the Live Your Life case.

I have far far less patience, however, for this newer accusation. Wiggle and Giggle All Night is NOT Levitating. 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, the 4th degree of the minor scale, then four notes one step lower, the 3rd degree, and continues on that way down the harmonic minor scale two more times until the little ending figure as she sings, “for a ride.” 

So it’s very much a scale, but with four quick equal length notes at each pitch.

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

That song is from forty years ago, btw, and it’s almost charming, isn’t it?

It’s the rhythmic and melodic simplicity itself that makes these two tunes sound similar. The rhythm is a bunch of uniform length notes that follow the rapid lyrics and both melodies are little more than a descending scale. And, of course, nobody can claim ownership of a musical scale. Scales are common property, and to a good extent, so are 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, but a question of degree. And here there’s nothing novel.

Are the lyrics similar? No.

Hypothetically, if such not-very-distinctive similarities were to continue and accumulate for an unreasonably long time, say, to the next musical thought, and then to the next, that would be more suspicious. Right? What are the chances? Why bring that up?

Here’s Miguel Bosé’s “Don Diablo!”

It contains the same “idea” we hear in “Levitating” and “Wiggle and Giggle,” with those rapid sixteenth notes descending along a scale. So if we were comparing just “Diablo” and “Wiggle,” we might initially expect to dismiss it. But then the similarities keep accumulating. Diablo 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 by the length and specificity of the similarities. So this is extremely indicative that “Diablo” is a copy of “Wiggle.” 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 with Levitating. The aspects of expression they have in common are not especially unique to either work. And when we look farther and wider we find important differences.

In addition to being an application of different 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; 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.

Am I being clear enough? This is silly.

The real musicological hammer for the defense 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 at all “probative of copying” as we say, meaning Dua Lipa didn’t need to have heard these songs to have written “Levitating.”

In Dua Lipa’s other copyright infringement case, Lipa is accused of copying “Live Your Life,” and that accusation is not particularly compelling. This one, though is far, far less so.

Written by Brian McBrearty