March 2, 2022 Musicology No Comments

When a song as big as Levitating gets sued for infringement, it’s news, and everyone has an opinion. I have one too. But rather than just tell you my opinion, how about I take you through a thought process and let you formulate your own?

With that…

A reggae band called Artikal Sound System has filed a suit against Dua Lipa, because they think Lipa’s “Levitating,” maybe the biggest hit song in the world over the last couple of years, sounds way too much like their 2017 track, “Live Your Life.” The complaint itself doesn’t get into musicological details on the ways in which they’re similar, but you’ll hear it right away.

First, here’s Levitating, though you’re almost certainly familiar already. I cued it up so that it begins for you at the chorus because that’s the section that’s going to be most relevant.

Dua Lipa Levitating on YouTube

And here’s Artikal Sound System’s “Live Your Life.”

Ooof. Just about anybody can hear how “Live Your Life” might’ve led to the creation of “Levitating,” right?

But did it? Is that the most reasonable hypothesis?

Frequently on Musicologize I say something like, “Let me tell you in just three minutes what’s happening here.” And this is gonna be one of those times. So before you think, “Brian, I just heard it. They’re the same. This is a slam dunk!” I’m going to show you why it’s not, have a little faith, and besides, it’s more interesting to talk about what sort of questions are going to arise.

First, let’s look at the musicological reasons these two tracks sound so similar and discuss how much each reason matters. What we really want to know is these two things: How probative of copying are these observed similarities? And how original to Live Your Life, and therefore protectable by its copyright owners, is that similar material. And here’s a super quick thought process:

  • Levitating and Live Your Life are in the same key — B minor. When played back-to-back this is definitely striking, especially to the layperson, but musicologically speaking key is usually not very significant. It’s not nothing, and in court, for a jury? It could play huge. But it shouldn’t.
  • They’re also pretty nearly the same tempo. Levitating is a little zippier. Tempo, also not especially significant, but also not nothing.
  • Harmonically speaking, Levitating (in its entirety) and Live Your Life (at least in its choruses) are built upon very similar though not identical two-measure long four-chord progressions. Only the respective fourth chords are different as you’ll see in a sec, and those are the least impactful of the four chords. If I swapped them out for each other, you’d hardly notice. So they’re pretty alike. But chord progressions too, famously, are generally not very protectable, unless they’re novel which these aren’t. This too though is not nothing. Here are the chord names. We can look at them as simple triads. Levitating changes from E minor to B minor in the second measure, and Live You Life just stays on Em for the whole four beats. That’s the difference.
    • Levitating chords: ||: Bm F#m | Em Bm :||
    • Live Your Life chords: ||: Bm F#m | Em Em :||
  • In terms of originality, those chords, off the top of my head sitting at a piano for like three minutes, appear in:
    • Don’t Speak by No Doubt (in the verses)
    • Silence and I by Alan Parsons Project (also in the verses)
    • Many Too Many by Genesis (I don’t know why I even mention it, nobody knows this song.)
    • Just A Song Before I Go by CSN (might not have thought of this, but it’s in one of Sirius XM’s playlists lately and I’ve heard it a few times this week.)
    • In The Air Tonight by Phil Collins? — Not exactly, but I could ignore the pedal tone and make a case for it.
    • You get the point. If I sit here long enough I’ll have a lot more. Chord progressions aren’t generally protectable by copyright for good reason. There limited in supply, and we need them if we want new songs to be written.
  • Those chord progressions have a very similar harmonic rhythm too. That’s where the four chords occur over the course of those two measures. Now we’re into the “groove.” These two “grooves,” comprised of chords, played in rhythms, and played with certain instruments, are indeed very similar. So things have already piled up to the point where in my experience, lawsuits get proposed. This is more or less why Ed Sheeran is getting sued for “Thinking Out Loud” being too much like “Let’s Get It On.” But even to this point… tempo, chords, grooves, key — it’s a lot of similarity, but in popular music what we’re really going to be persuaded by is melody and lyrics.
  • Well, the melodies are similar too! At least in the hooks, they are. Let’s look at pitches, melodic arc and rhythm. Both tracks begin on the same pitch, F#, they move to E, then they descend in much the same way along the scale, rhythmically similar except for employing the “prosody” dictated by their unique respective syllabic content — which is all a plaintiff’s musicologists way of saying something like, “when the defense points out the differences, those differences in the melody are dictated, not especially significantly, by the non-identical lyrics. So ignore those. These songs are still pretty darn similar.”
  • And lyrical similarity? Again! Not nothing. We’re not looking at every word equally. We’re looking at the hookiest ones. You probably heard those “moonlights” and “all nights” sounding pretty identical, didn’t you?
    • Levitating’s lyric: “I got you, moonlight, you’re my starlight. I need you, all night, come on, dance with me.”
    • Live Your Life’s lyric: “All day, all night, heartache till the sunrise now.” (It’s ‘heartache’ right? I hear the lyric as ‘heartache.’ No big.)
    • Could you sing the lyric from Live Your Life along with Levitating? Sure you could. And so often, that’s deceiving, a red herring, but here, it’s pretty much the point. Those “all nights” and “moonlights” line up really well just about every way you look at it.

I’m probably already at my three minutes. And it sounds like I’ve painted a slam dunk infringement picture. But no, I haven’t. I’ll need a couple more minutes though.

Let’s consider the counterarguments.

Infringement is a three-legged stool, and those legs are access, similarity, and originality. We’ll focus mostly on the first and third.

Access

You can’t “copy” something you’ve never heard, though two creators can write similar songs coincidentally. Do we believe Dua Lipa or whoever wrote Levitating had access to Live Your Life? What would you say? It is and isn’t a musicologist question. If I find through my analysis that access is reasonably assumed because I’m able to infer it from what the notes tell me, that’s a musicological opinion, and a strong one. But separate from that, how many youtube plays should lead us to believe Dua Lipa probably heard Live Your Life. The complaint says the album on which Live Your Life appears charted at #2 on a Billboard reggae chart. But for how long, a month or a day? I don’t know how to weigh the Billboard reggae chart in a probability equation. Sounds like enough. And access could matter a lot here! Which, I’ll pause to admit, sounds a bit odd coming from me because…

If you have read Musicologize before, you’ve heard of something called the ‘inverse ratio rule.’ I remember trying to explain it in a live national radio interview without blurting out “and it’s such a stupid idea!” It was an allowable argument in certain circuits until very recently and it was a significant factor in the Stairway To Heaven case which was what that interview was focused on probably. The ratio itself was “access relative to similarity” where if you believed the defendant MUST have been familiar with Song A, then in trying to infer copying you could set a lower threshold for Song B’s similarity to Song A. And the opposite, if the defendant was unlikely to have been familiar with Song A, then Song B would need to be so extremely similar as to overwhelm that. And in short, the latter makes sense and the former makes much less sense. Think about it for a bit.

If you think it’s unlikely Dua Lipa or the Levitating team have ever heard this reggae track, then it’s unlikely they copied it, right? Yes. Right. The inverse ratio rule was only half stupid.

As for similarities, are they similar? Yes, they are. Is it “enough” similarity to say they MUST have heard Live Your Life? No, I would stop well short of saying that. A coincidence? Yeah, a considerable one maybe, but still yes, my opinion at this point is it’s more likely a coincidence than a case of copying.

And this is tangential to the question of “originality.” We ask, “Is the material from Live Your Life which appears in Levitating original to “Live Your Life?” As I pointed out, the notes of Live Your Life mostly follow a scale, and scales are common property and not protected by copyright. And these are the kinds of arguments that will be made, a lot, and at length. There’s more here than just a scale obviously. All the arguments I laid out will be made, “Key doesn’t matter.” Can’t copyright a chord progression.” These elements appears in other songs.” These are scalar and mostly static melodies!” “I can show you these rhythms in basic music textbooks. And so forth.” That’s what we musicologists do. You can infer my leaning, but I can’t and won’t give a flippant answer on originality. It deserves research and thought, and again, along with access, I’d expect originality be the crux of the case.

Here’s where I’m focused right now after thinking about this for just a short while… you know those “all day, all night, moonlight,” moments in Levitating? You can look at that as a string of three similarities (which sounds like a lot) or you can see it as just one similarity that repeats three times. Sing it, “Moonlight, you’re my, starlight” and you’re singing a figure called a dotted-eighth sixteenth. And you’re singing both syllables on the same pitch in each case. In other words, it’s the same simple idea, repeated thrice. If you are a songwriter and you have this dotted-eighth sixteenth groove going — because maybe you had it going on a guitar or a piano before you even thought about your lyrics — this is at least a little bit how the song is bound to go, until you’ve squeezed in those three words, and you sorta reset the groove at the end of your four bars as they did in Levitating with “I need You,” and as Artikal did in Live Your Life with the “now” that follows “sunrise.”

There’s an idea in copyright called Scènes à faire and my french was never great but “faire” is “do, done, did” so the phrase is “Scenes That Get Done” or something like that. And it’s kinda the point I’ve made here. You sing that figure once, you’re bound to let it follow throughout the groove. It’s a small thought, repeated. A small common really simple thought. You can see the argument, and it’s gonna get made in this case. It’s not a long series of similarities, it’s one very simple one, over and over.

Last thought for now: I’ve just read the complaint and it’s fairly brief, saying, “Given the degree of similarity, it is highly unlikely that “Levitating” was created independently from “Live Your Life.” I disagree but honestly, this is refreshingly reasonable. Complaint filings and even musicologist reports more often read, “There is NO WAY IN HELL that Song B could exist except for Song A,” and although I’m decisive where I can be, the truth is that stopping at “highly unlikely” is usually the more intelligent stance. So, I already like these guys, and being likable can go a long way. Just ask Katy Perry, who faced an awfully likable squad in the Dark Horse trial and darned near lost what should’ve been an impossible-to-lose case. (Actually, she did lose, but it was rightly reversed on appeal.)

And my three minutes were up a minute or two ago, so I’ll sum up, though I’m reserving the right to give it more consideration. I’ll be thinking about this on and off for days I’m sure.

They’ve got a case. There are notes and lyrics in here falling on identical pitches, with similar-sounding syllables, at identical points in time, and they’re important musical events and important times.

Slam dunk? No. Infringement? That’s a legal conclusion and I am not a laywer.

But forced to make a call of some sort? Caveats and all, I suppose my call right now is that there’s no way Dua Lipa lets this get to trial. It’s obviously not because I think she’s guilty; I think this was a coincidence. But it’s because putting these two pieces before a jury of laypeople looks like a dicey proposition.

But it would be better for copyright and for the world if she fights it. Hope she does.

Written by Brian McBrearty