My Take On “Levitating”

If you’re a pop music junkie you’re probably aware that the writers of Dua Lipa’s 2020 hit “Levitating” are being sued by the members of South Florida band Artikal Sound System who claim it’s substantially similar to their song “Live Your Life” - a reggae infused 2017 release.

And if you read me you prolly know that I usually side, or shall I say “hear,” the justification for infringement lawsuits. It may be a Laurel Yanny thing, but it’s the way I roll. 

Back when the law was easier to follow — before file sharing and sampling clouded the concept of “likeness” — before this stuff was fought out in the court of social media, infringement cases were less convoluted. 

I feel sorry for the law — which states that in order to successfully prove a song was plagiarized a plaintiff must show 3 things: 

1- Likeness — is there enough melody and lyric in common between your song and theirs?

2- Accessibility — was your song available to be heard?  

3- No Prior Art — was the “borrowed” portion of your song something that hasn’t been used before in other material?

If you check out a mash-up, or even if you don’t, it’s pretty obvious that there are unquestionable similarities between “Levitating” and “Live Your Life”…

Lyrically speaking “All Night” is on the top of both hooks. Curious for sure but come on! Those words are in a gazillion pop songs. All night/TOnight…it’s all about “The Night,”isn’t it? So you can’t hang your hat on that. 

And both “Levitating” and “Live Your Life” have the same tempo (and are written in the same key). But so what? I mean…yeah…if there’s a song with a vibe you wanna catch you might lock into its tempo (and key) but it could just as likely be a coincidence, right? There are countless songs with the same BPM (and key) 😳… So these elements cannot be held responsible.

Music theorist Adam Nealy points out that the “Charleston” rhythm used in both songs has been well established in countless hits — Jackson 5’s “Blame it on the Boogie” for one — so you can’t blame it on the rhythm either. 

Then there’s the aspect of accessibility. Where did they hear your song? 

So…even if a user doesn’t interactively choose specific tracks, a DSP may offer them material based on their past listening habits. For instance if one of the writers of “Levitating” is into reggae, Spotify might have spit back random reggae tracks for them. They might have even curated “Live Your Life.” However, last I checked I couldn’t locate “Live Your Life” on Spotify or Apple Music so why would they offer something they don’t even have in their system? And as far as YouTube goes there were only 5k views of the video. So one might wonder how exactly Dua and her co-writers had access to the band's work.

But even if Artikal Sound System is able to make a compelling case, prior art will likely be the culprit that ruins their day because…Outkast’s  “Rosa Parks,” a track released in 1999 has all the same similar elements as “Levitating” and “Live Your Life.” In fact, the hook is so similar to “Levitating” one could be persuaded that it was “Rosa Parks” that prompted “Levitating” (especially because Dua herself said that she was inspired by Outkast when embarking on her album Future Nostalgia.

But because “Rosa” was released before “Live Your Life” one could argue that Artikal Sound System was inspired by OutKast too! So if anyone should be doing the suing it’s Outkast. That said there’s prolly tons more examples of songs with these same popular tropes that came before “Rosa Parks.”

My point is there’s just too much prior art for anyone to be suing anyone. 

I’ve had some personal experience btw, with being saved by prior art. In 1995 Gregg Sutton and I were contacted by the publishers of “Take My Breath Away” who alleged the main melodic motif in our song “Every Time You Cry” (recorded by Curtis Stigers and later a # 1 for John Farnham) was similar (OK — it was pretty much identical) to the one in “TMBA.” But a musicologist was able to show that this motif - or shape of melodic notes - was used on dozens of “prior” occasions such as Prince’s “Diamonds and Pearls,” Smokey Robinson’s “Everything You Touch.” Therefore if “Take My Breath Away” wanted to pursue the suit, it would have to answer to all the songs that came before it with that same motif.

Listen — I do think that songs are sounding more and more alike these days. Songwriters could make an effort to be more original. But can you blame us? Algorithms, which determine what DSPs stream, are basically forcing a creative community to write familiar sounding fodder. It’s a shame. But it’s true. 

But the law is also the law. And I don’t think this suit has legs. 

For anyone interested (or at risk) NSAI offers a copyright infringement insurance policy. You may want to have a look at it. 😳😳

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