March 2, 2022 Musicology No Comments

When a song this big gets sued for infringement, it’s news, and everyone has an opinion. Maybe rather than just tell you my opinion, I can take you along 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!

So yeah, this could definitely be something. This is one of those times when just about anybody can hear how “Live Your Life” might’ve led to the creation of “Levitating,” right?

But did it?

We’re going to give this the usual Musicologize “Hey, let me tell you in three minutes what’s happening here.” And while I know you’re probably thinking, “Brian, this is a slam dunk!” it’s not, and it’s more interesting to talk about what sort of questions are going to arise.

First, let’s look at the specific reasons these two tracks sound so similar along and evaluate how much each reason matters. In other words, how probative of copying are these similarities? And how original and therefore protectable is the material.

  • 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, key is usually not very significant. It’s not nothing, and in court, for a jury? It would play huge.
  • They’re also pretty nearly the same tempo. Levitating is a little zippier. Tempo, not especially significant, but also not nothing.
  • Levitating (in its entirety) and Live Your Life (at least in its choruses) are built upon very similar though not identical two-measures 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. And chord progressions, 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 chords: ||: Bm F#m | Em Bm :||
    • Live Your Life chords: ||: Bm F#m | Em Em :||
  • 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.
  • Those chord progressions share very similar harmonic rhythm too, meaning precisely where the four chords occur over the course of those two measures. Now we’re into what we call the “groove,” and here too, nothing really novel. BUT these two grooves, comprised of chords played in rhythms by certain instrumentation, are 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. Pitches, melodic arc and rhythms. Both tracks begin on the same pitch, F#, move to E then then descend in much the same way along the harmonic scale, rhythmically similar except for employing the prosody dictated by their respective syllabic content — 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.
    • 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 nearing my three minutes. And if it sounds like I’ve painted a slam dunk infringement picture, no, I haven’t.

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, I’m no expert on 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 the parallel is that it’s unlikely they copied it, right? Yes. 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. Coincidence? A considerable one I’d say, but yes, my opinion at this point is it’s more likely a coincidence.

It’s tangential to the question of “originality.” We ask, “Is the material from Live Your Life that 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 much more here than just a scale obviously. Those arguments will be made about everything, all the stuff I said above. “Key doesn’t matter. Can’t copyright a chord progression. Appears elsewhere. Scalar and mostly static melody. Rhythms I can show you found in music textbooks. And so forth.” That’s what we musicologists do. 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 to be the crux of the case.

Here’s where I’m focused right now… you know those “all day, all night, moonlight,” moments in Levitating? You can look at that as a string of three similarities, or 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, thrice. If you are a songwriter and you have this dotted-eighth sixteenth groove going — maybe you had it going on a guitar or a piano before you even thought about your lyrics — this is how the song is bound to go until it runs out of runway 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 that good but “faire” is “do, done, did” so it’s 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, 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 have one more “This is not nothing,” here. 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 “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? Far from it. Infringement? That’s a legal conclusion and IANAL, but I’d make it here for fun, I’m just not ready.

But forced to make a call of some sort? Oh, I can, certainly. Caveats and all, my call right now is that there’s no way Dua Lipa lets this get to trial, not because she’s guilty, but because putting these two pieces before a jury of laypeople, at this point, looks to me decidedly risky.

Written by Brian McBrearty