Larball Publishing Company, Inc. v. Dua Lipa

District court grants summary judgment dismissing claim for copyright infringement against Dua Lipa, finding no substantial similarity between her hit song “Levitating” and protectable elements of plaintiffs’ works.

Larball Publishing Company Inc. and Sandy Linzer Productions Inc. own the copyrights to “Wiggle and Giggle All Night,” a 1979 disco song, and “Don Diablo.” Larball and Linzer sued pop star Dua Lipa, as well as other artists, producers and publishing companies, alleging that Dua Lipa’s 2020 hit song “Levitating” and its remix “Levitating (Da Baby)” unlawfully copied “Wiggle” and “Don Diablo.” Defendants moved to exclude the reports of plaintiffs’ two musicological experts on the basis that those reports did not “filter out” commonplace, unprotectable expression and contained impermissible conclusions of law. Defendants also moved for summary judgment based on the lack of substantial similarity between the protectable elements of the songs at issue.

The district court denied in part and granted in part defendants’ motion to exclude. Although the law requires the fact finder to filter out the unprotectable elements of expression when assessing substantial similarity, the district court determined this does not create a “methodologic requirement” on experts to conduct a filtering analysis. Defendants’ argument that an expert report must be excluded if it does not reflect filtration “conflate[d] the legal standard for definitively establishing that substantial similarity exists with the requirements for a reliable expert report that could assist the trier of fact in concluding that such a similarity exists.” The court reasoned that the experts’ analyses of the musical components of the songs at issue “could be helpful to the trier of fact in deciding the issue of substantial similarity,” and held that the absence of filtering did not render plaintiffs’ expert reports inadmissible.

The district court did, however, exclude the ultimate legal conclusions contained in the expert reports, including that the similarities between the songs established copyright infringement and that “Wiggle” satisfied any originality requirement, finding that those statements impermissibly usurped the role of the fact finder to apply the law to the facts.

The court granted defendants’ motion for summary judgment, finding that plaintiffs failed to prove substantial similarity between the protectable elements of the songs. The district court determined that plaintiffs’ assertion of alleged infringement “distills to one descending scale plus one additional identical note,” and noted that under the Second Circuit’s 2024 decision in Structured Asset Sales, LLC v. Sheeran, “the combination of two unprotectable elements is not sufficiently numerous or original to constitute an original work entitled to copyright protection[.]” (Read our summary of the Second Circuit’s decision here.) Because a descending scale and one additional note are unprotectable elements, combining those two unprotectable elements failed to establish substantial similarity. While plaintiffs attempted to identify additional elements as similar—such as a “patter style” and “rapid tempo”—these were “not uncommon” and thus were unprotectable, both alone and in tandem. Accordingly, the court granted summary judgment in full in favor of defendants.

Summary prepared by Safia Gray Hussain and Keane Barger