Jurisdiction(s):
United Kingdom

US District Court (SDNY) grants Dua Lipa summary judgment in ‘Levitating’ copyright case, citing Second Circuit Sheeran ruling; musical 'building blocks' not protectable; publishers to appeal

Published on: 28 March 2025

Published by a Law360 reporter

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Article summary

US District Judge Katherine Polk Failla found that Lipa did not infringe Larball Publishing Co and Sandy Linzer Productions' (SLP) 1979 track 'Wiggle and Giggle All Night', because the Second Circuit clarified in 2024, in litigation over Ed Sheeran's hit 'Thinking Out Loud', that pairing two unprotectable elements lacks the requisite originality to amount to a copyrightable work under appellate precedent recently and clearly reaffirmed in that decision concerning popular music authorship and scope of protection. Awarding Lipa summary judgment, Judge Failla concluded that Larball and SLP failed to 'create a triable issue regarding substantial similarity' between Lipa's recording and any protectable components of theirs. She also rejected what she described as the music publishers' 'last-ditch attempt to rescue their case', noting that their 'newly minted merits theory' was advanced too late and, in any event, would not have altered the outcome. The publishers, for example, asserted that a 'patter style' of sung notes and a pop-disco musical style rendered the musical phrase at issue protectable. Yet Judge Failla observed that Lipa submitted unchallenged proof that the patter style has appeared for centuries, including in works by 'Mozart and Rossini and operettas by Gilbert and Sullivan'. She further said that...

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