Kante v. Dua Lipa

District court denies pop star Dua Lipa’s motion to dismiss copyright infringement claim over use of “talk box” vocals in remixes of her hit song “Levitating,” finding that plaintiff was not required to include in his complaint forensic analysis or to specify exact portions of his vocal recordings that were used in each remix in order to state claim for infringement.

Plaintiff Bosko Kante is a musical producer and “talk box” artist. Kante was approached by producers for Dua Lipa to record talk box vocals for Lipa’s song “Levitating,” which eventually went quadruple platinum. Kante recorded the vocals and registered them for copyright. He orally agreed to license the vocals for use in the original recording of the song. Three subsequent remixes of “Levitating” were later released by Lipa’s record label, Warner Records Inc., all of which allegedly used Kante’s vocals. 

Kante brought suit alleging three causes of action: copyright infringement, breach of contract and accounting. Defendants (Lipa, her producer and Warner) moved to dismiss the copyright infringement and accounting claims. Defendants argued that the copyright infringement claim must be dismissed because Kante’s complaint did not identify the portions of the vocals that were used in the remixes, which, according to defendants, meant Kante had not sufficiently alleged substantial similarity. 

The court noted that the question of substantial similarity is generally a close question of fact and that “disposing of copyright infringement cases before trial is disfavored.” Given that plaintiff alleged that defendants used some of his vocals for the remixed versions of “Levitating,” a fact that defendants’ counsel conceded at oral argument), and that it was indisputable that plaintiff’s vocal recording is a protectable element, the court found that dismissal was not warranted. Plaintiff was not required to conduct a forensic analysis of the sound files to establish substantial similarity for purposes of surviving a motion to dismiss, the court explained. 

As to the accounting cause of action, defendants argued that plaintiff’s state law claim was preempted by the Copyright Act. The court noted that the Ninth Circuit’s test for copyright preemption involves two prongs: first, whether the “state law claim falls within the subject matter of copyright as described in 17 U.S.C. §§ 102, 103,” and second, “whether the rights asserted under state law are equivalent to the rights in 17 U.S.C. § 106.” The court found that, because plaintiff’s accounting claim sought to determine how much Warner may owe plaintiff for the release of the remixes and because the Copyright Act provides a near-equivalent remedy of actual damages and profits from the infringer, plaintiff already had a statutory remedy to determine his potential damages. Accordingly, the court dismissed plaintiff’s accounting cause of action. 

Summary prepared by Tal Dickstein and Alex Inman