Modern Music Copyright: Insights from the Dua Lipa Case

There is a big probability that you have heard Dua Lipa’s ‘Levitating’ song. There is less chance that you have heard of a disco song ‘Wiggle and Giggle All Night’, performed by Cory Daye or ‘Don Diablo’ by Miguel Bose, for which Dua Lipa was accused of infringing copyright.

In the context of music, copyright provides creators of original musical works the exclusive right to reproduce, distribute and to perform those works. These important rights help to ensure that creators of original musical content are able to enjoy ownership of their efforts and commercialise them if they so choose. The copyright is breached when copying musical elements of another composition. Artists faced greater challenges regarding the protection of their musical creations when music appeared online rather than sold on discs in stores. The case of Napster UK v BPI was crucial to support copyright protection for artists, as it ensured that the music today is to be streamed under certain permissions, such as licenses.

Along with digitalisation, there was an increase in copyright cases. From use of sampling – the usual practice mostly recognised from 90s hip-hop, where a snippet of a song is played on a loop. To the use of ‘similar vibe and feel’ in the famous case of Robyn Thickle and Pharrell Williams ‘Blurred Lines’ song. Considering the massive damages of $5.3 million for Thickle, and $2.8million for Katy Perry, the increase in such cases is understandable. From one side there is protection for the original artists as they will get the deserved recognition and renumeration for their creativity.

On the other side there is undue pressure on the new musicians and the fear of a lawsuit for similar feel can inhibit creativity, which is against initial principles of copyright as clearly stated in the EU Copyright Directive 2019/790,‘That harmonised legal framework contributes to the proper functioning of the internal market, and stimulates innovation, creativity, investment and production of new content…’. For sampling, the benchmark is even higher as the court in Pelham v Ralf Hütter stated that the use of sampling is permitted only if it is ‘unrecognisable to the ear’. Whether the ear belongs to an average person or a musician, the court did not specify, which raises separate question of subjectivity. Blatant copying is obviously out of the question; however, the artists are often inspired by previous work by evolving them into something new. Afterall, Article 13 of Charter of Fundamental Rights of the European Union upholds that ‘the arts and scientific research should be free from constraint….’.

If in sampling the creation should be ‘unrecognisable to the ear’, in the case of the Larball Publishing Company v Lipa the court focused on similarities of the melodies where for copyright to arise the music should be ‘so strikingly similar as to preclude the possibility of independent creation’. This upholds the earlier significant decision of Sheeran v Chokri, which demonstrated that, especially on pop music, there are only very few notes which are used, and the songs do actually sound similar, without intentionally copying another artist. To demonstrate this, Ed Sheeran played his guitar in court and gave examples of how similar notes work as the base for several of his songs. After the fiasco of Thickle case, the court provided new artists with greater certainty by deciding against granting monopoly over a combination of fundamental musical building blocks. The similarity in the sounds of pop music make it very difficult to avoid the question of whether the defendant had access to the music before writing his own. There is even a phenomenon of unconscious duplication known as ‘cryptomensia’. The links for two songs which Dua Lipa was accused of copying along with her song can be found at the bottom of the article. By listening to all three, it is easy to find similarities and Dua Lipa has admitted that she took inspiration form earlier music for her album ‘Future Nostalgia’, to create a ‘modern retro theme’. This sounds exactly the type of innovation which copyright protection stands for. Taking something old and reinventing it into something new. Afterall, the chances of hearing of the Wiggle or Don Diablo songs from the 80’s being heard today are only through a court case against a current popular artist such as Lipa. Consider the Pedro song, which became viral thanks to a dancing racoon! This is a great example of how to use original music legally as Dj Jaxomy created a collaboration with the original artist. Lipa’s lawyers challenged the expert reports, based on their reliability. Which is understandable as two of them found striking similarities and only one confirmed that the only similarity between all three is the a ‘rapidly sung descending melody in which notes are repeated’ which coincides with the ‘benchmark’ approach from Ed Sheeran case.

‘The stronger the proof of similarity, the less proof of access required’. This means that if the songs are to be found so similar that independent creation is virtually impossible, then there is no need to prove that the earlier works were available before composing. Offence is as per usual an effective defence. Lipa’s lawyers challenged the copyrightability of the parts of the songs which claimed infringement and successfully proving that the style of melodies and tempos are far from unusual. The positive outcome for Lipa will add to successful defence cases that will aid future artists. This is also a warning to the hopeful who wish to obtain a lucrative compensation, as such trials are very costly. It is true that majority of these cases are decided out of court to avoid the extra costs, however when going after someone at the height of their career, expect top tear legal teams and ability to spend for protection of reputation.

Overall, the way we appreciate music is very subjective and whilst some may appreciate the new adaptations, others may find them offensive and demeaning to the original classics. There is also a difference in the strictness between European and UK courts with their ‘unrecognisable to the ear’, compared to the very wide ‘fair use’ in US. Appearance of AI ahs already made its mark in the arts and there will be an interesting discussion on whether the laws will become more lenient or prefer the stricter path to protect human creativity.

Plaintiff 1- The Wiggle Song

Plaintiff 2- Don Diablo Song

Defendant- Levitating Song

Larball Publishing Company, Inc. et al v. Lipa et al, No. 1:2022cv01872 - Document 135 (S.D.N.Y. 2025) case