IP Law Daily, COPYRIGHT—C.D. Cal.: Dua Lipa rises above a Florida band’s infringement claim, (Jun 9, 2023)

By Matthew Hersh, J.D.

The band claimed she purloined the song Levitating, but it could not meaningfully allege access.

A South Florida reggae band’s lawsuit against pop superstar Dua Lipa and her songwriters and record label would have to be dismissed because the band had not alleged sufficient facts to show that the songwriters had access to the song that they claimed Dua Lipa plagiarized, a federal court in the Los Angeles area has held. The court’s ruling, which managed to pack an extensive analysis of several copyright issues into its slim 12-page opinion, appears to have prompted the Florida band to wholly abandon its lawsuit several days later (Cope v. Warner Records Inc., June 5, 2023, Sykes, S.).

The lawsuit was brought by the members of the band Artikal Sound System, a Florida reggae outfit that cheekily refers to itself by its acronym (readers can figure that out for themselves) in its promotional materials. The band targeted Dua Lipa, the Albanian-born superstar and the performer of smash hits such as One Kiss, Don’t Start Now, and New Rules. The lawsuit in this case took aim at Levitating, the platinum-certified chart-topper released in 2020, contending that it borrowed improperly from their 2017 song Live Your Life. (An analysis of the alleged similarities between the two songs was helpfully provided one year ago, when the suit was originally filed, by Rolling Stone).

Lipa moved to transfer the lawsuit to a Manhattan federal court, where another infringement lawsuit against her for the same song was pending. Alternatively, Lipa argued, the lawsuit should be dismissed for failure to state a claim.

Motion to transfer. The court rejected the motion to transfer the case to the Manhattan court. The court found the issue relatively straightforward: there were simply insufficient allegations, the court noted, of personal jurisdiction over the defendants in New York. As to the songwriters, the court noted, while they contended that their royalties agreement with New York-based ASCAP supported jurisdiction, they failed to submit the actual agreement—meaning the court was simply unable to determine whether the agreement “related specifically to the allegedly infringing composition.” The same was true for Warner Records, also named in the complaint. Here too, the court noted, the company had “failed to describe a nexus or relationship between its in-state activities and Plaintiffs’ copyright claim as is required to establish specific jurisdiction.” Thus, the case—at least so long as it remained on the docket—would remain in California.

Access. Although the court refused to transfer the case, it dismissed the case anyway on the basis of lack of access. The Florida band alleged two reasons why Dua Lipa and her team could have had access to their song—but neither was sufficient to allow the case to move forward. The band first argued that its song was widely enough disseminated that Dua Lipa and her team would likely have heard it. But all they alleged was that the song had been performed at an “unspecified” number of live performances, they had sold “several hundred” CDs with the song, and that the song was available on streaming platforms. But the allegations about performances and sales were too vague to support the complaint, the court reasoned, while the mere fact that a song was available on the internet—by longstanding precedent—also was inadequate. Nor had the band sufficiently alleged a “chain of events” that could have plausibly led the song into the hands of Dua Lipa and her team. The band only alleged a series of “attenuated events”—one of the band members allegedly taught guitar to a third party who had worked with one of Dua Lipa’s songwriters on a different song entirely—that was not enough to support an inference of access. Thus, the complaint would fail.

Substantial similarity. Although the court was not required to, it also evaluated whether the complaint adequately alleged that the songs were sufficiently similar to one another to support an infringement claim. Here the Florida band won a victory, though ultimately an empty one. Musical works, the court reasoned, were typically too complicated for a court to decide, at least on a bare motion to dismiss and without the aid of expert testimony, to decide whether one infringed the other. Here, the band alleged, the two works were “substantially similar in their main melodic theme, supportive harmonies, and accompaniment”; that both were “set to minor keys and have similar tempos and overall feel or style,” and that their similarities were “readily apparent from a transcription (i.e., music notation) of the relevant passages of each composition.” A bare motion to dismiss was not the place to resolve this dispute, the court held.

End of the line. The court, in dismissing the complaint, gave the Florida band leave to refile its allegations. However, the court’s ruling was apparently the last straw for the band, who stipulated to dismiss the case with prejudice. In a statement to Billboard Magazine on Wednesday, attorneys for Dua Lipa stated that the band had “chosen to walk away from the litigation unilaterally” and that no settlement had been reached.

The case is No. 2:22-cv-01384-SSS-ASx.

Attorneys: Robert S. Besser (Law Offices of Robert Besser) for Christopher Edward Cope, Christopher Edward Montague and Fabian Andres Acuna. David A. Steinberg (Mitchell Silberberg and Knupp LLP) for Warner Records, Inc., Dua Lipa and Clarence Coffee, Jr.

Companies: Warner Records, Inc.

Cases: Copyright FloridaNews GCNNews