A copyright infringement suit over Dua Lipa’s megahit Levitating will go forward, after the artist and Warner Music Group (WMG) lost a bid to have the case thrown out of court.
Producer and talkbox artist Bosko Kante sued Lipa, WMG and producer Stephen Kozmeniuk (aka Koz) last year, alleging that a recording he had made was used without his permission on three remixes of Levitating.
The complaint asked for at least $2 million plus interest in damages, as well as profits made from the remixes, which it estimated as being at least $20 million.
The lawsuit alleged that Kante had been asked by Kozmeniuk to make a talkbox recording to be used in Levitating, and that they had come to a verbal agreement for the recording to appear in the original album of the song, but not for it to be used in remixes.
Earlier this year, Lipa and the other defendants asked the court to dismiss the case on the grounds that Kante had failed to specify which portions of his recording had been used in the remixes, and therefore failed the “substantial similarity” test needed for a copyright infringement claim.
In a decision issued on Monday (September 10), Judge Hernan D. Vera of the US District Court for the Central District of California denied to the motion to dismiss, declaring that Kante doesn’t need to “conduct a forensic analysis of the sound files” at this stage of the trial.
“The court finds that plaintiff has adequately pled a copyright infringement claim by alleging that ‘all or substantially all’ of his copyrighted recording – i.e., his actual voice – was used in the remixes without his permission. That is sufficient,” Judge Vera wrote in his decision, which can be read in full here.
“There is no requirement that plaintiff be made to identify, second-by-second, which portions were used.”
The monetary stakes in the case are potentially high, as one of the remixes of the song – featuring rapper DaBaby – has become the most popular version of the song.
On Spotify, the DaBaby version has 2.145 billion streams, compared to 984 million streams for the album version. On YouTube, the DaBaby version has 902 million views, compared to 16 million for the most popular video of the album version.
Another version, the Blessed Madonna remix featuring Madonna and Missy Elliott, has 65 million streams on Spotify and 40 million views on YouTube.
Levitating is one of the largest hit songs of recent years. Released in 2020 as a single off Dua Lipa’s sophomore album, Future Nostalgia, the song broke the record for longest-charting song by a female artist on the US Billboard 100, having spent 77 weeks on the chart in 2020 and 2021.
Despite the defendants’ loss on the copyright claim dismissal, WMG did succeed in a separate motion to dismiss an “accounting” claim that Kante had brought against the music company under California law.
That claim would have required Warner to disclose how much money had been made off the Levitating remixes, so that Kante could determine how much he is owed if he were to win the case.
Judge Vera dismissed that part of Kante’s case, ruling that federal copyright law trumps the California law in this instance, because Kante can still request an accounting under federal law.
“There is no requirement that plaintiff be made to identify, second-by-second, which portions were used.”
Judge Hernan D. Vera
This is not the first time that Levitating has been the subject of a copyright infringement lawsuit. The song was the target of two copyright suits in 2022.
In one of those cases, a band called Artikal Sound System alleged that Levitating was “substantially similar” to their own track, Live Your Life.
That case was dismissed by a US federal court judge last year, who ruled that Artikal Sound System had failed to offer direct evidence of infringement, or even indirect evidence, such as that Levitating’s creators had “access” to Live Your Life.
In another case, songwriters L. Russell Brown and Sandy Linzer alleged that Levitating infringed on the copyright of their 1979 song Wiggle and Giggle All Night.
That case survived a motion to dismiss last year, with a federal court judge in New York ruling that the two tracks were “strikingly similar,” enough for the case to go forward.Music Business Worldwide
