Case Analysis: Larball Publishing Co., Inc. & Sandy LinzerProductions, Inc. v. Dua Lipa, et al (2023)

By Bagath Manish A

I. Quorum & Bench

Court: United States District Court Southern District Of New York 

Katherine Polk Failla, District Judge: Iissued all the key rulings, including: the August 8, 2023 decision denying the motion to dismiss, and the March 27, 2025 summary judgment in favor of the defendants.

II. Brief Facts

The facts of the case originate from the release of Dua Lipa’s 2020 hit song, “Levitating” and its remix “Levitating (Da Baby)”. Soon after release, Larball Publishing Company Inc. and Sandy Linzer Productions Inc., the plaintiffs in the present case who have copyright over “Wiggle and Giggle All Night”, a 1979 disco song, and “Don Diablo”, sued the defendant, in a claim for copyright infringement under the U.S. Copyright Act (17 U.S.C. § 101 et seq.) over the above mentioned songs.[1] The plaintiffs claimed that the songs’ similarities were “striking and substantial”. While the plaintiffs did not want Dua Lipa to unfairly profit from what they believed were copyrighted elements from the original song, and pleaded for an injunctive relief, the defendants denied all such claims, and contended that what was held to be an infringement were not protectable elements under copyright law. Hence the suit.

III.  Laws Involved

A. Substantive Law: Copyright Infringement Standard

For each allegedly infringed work, “a plaintiff must show: 

[i] ownership of a valid copyright; and 

[ii] unauthorized copying of the copyrighted work.”. A certificate of copyright registration is prima facie evidence of ownership.[2] It further needs to satisfy two conditions.

B. Procedural Law and Evidentiary Rules

Rule 56, Federal Rules of Civil Procedure – Allows Summary judgment based on the lack of ‘substantial similarity’ between the protectable elements. 

Rule 702, Federal Rules of Evidence – A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise

Federal Rule of Civil Procedure 26(a)(2)(B) - rule made to prevent a party from surprising the opposing party with new evidence. 

Federal Rule of Civil Procedure 56(a) shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

IV. Analysis

A. Parties’ Arguments

Petitioners’ Position:

The petitioners based their arguments pivoting on direct, contributory, and vicarious copyright infringement claims against Defendants under the Copyright Act of 1976, 17 U.S.C. ch. 1-15 (the “Copyright Act”). They extensively used Barbara Salani (the “Salani Report”) and Charles Calello (the “Calello Report”) to extensively showcase how there appeared to be a substantial similarity in the protected elements. They contended in consonance with these reports, that Dua Lipa’s 2020 song has copied the way in which there appeared to be a ‘rapid sung descending melody in which notes are repeated’. The plaintiff used the ‘striking similarity’ theory to substantiate their claim of a valid copyright.

Defendants’ Position:

The defendants on the other side began their contention with an assertion of non-compliance of Federal Rule of Evidence 702, due to which they contended that the Salani report and the Calello report should be excluded in their entirety. They repeatedly pointed out the lack of sufficient methodologies by the experts regarding ‘substantial similarity’. They put the legal threshold for conclusively proving the existence of a substantial likeness on par with the standards for a trustworthy expert report that could help the fact finder reach that conclusion.The defendants, in the end, pleaded for a summary judgement, in recognition of its observed purpose, that is, to prevent unnecessary cases in which there is no genuine issue as to any material fact.

B. Court’s Analysis

The district court adopted a nuanced approach while broaching on this matter, and partially granted the defendants' request to exclude and partially denied it. The court decided that while the law compels the fact finder to eliminate the unprotectable components of expression when determining substantial resemblance, this does not impose a “methodologic requirement” on experts to perform a filtering analysis. In its thorough assessment, the court rightfully determined that each of these elements are individually not copyrightable and that they lack sufficient originality to be protectable under copyright law. The court used the precedent set in Structured Asset Sales, LLC v. Sheeran, in which the Plaintiff failed to show copyright infringement by Ed Sheeran’s song of an earlier Marvin Gay song, by which the court concluded that “the combination of two unprotectable elements is not sufficiently numerous or original to constitute an original work entitled to copyright protection”.

V. Contemporary Significance

We live in an era where this intersection between IP and music, on the downside, has proven to be a very litigious area, with a lot of unnecessary suits piling up due to alleged ‘similarity’. The court should be applauded, as it now establishes a scientific framework through the precedent set in this case, through which it decides what ranks of cases fall within the ambit of summary judgment. This helped in taking the liability off Dua Lipa, in a suit where the plaintiffs failed to pass the ‘striking similarity test’. 

This raises a broader question: where should courts draw the line between genuine copyright protection and the natural limits of creativity in an environment where music finds itself in a confined and finite landscape? The significance lies in the fact that this decision marks a shift towards recognising that not all musical similarities are legally actionable, especially when they involve common, unoriginal elements. By requiring a higher threshold of originality, as the court had set in this case, the ruling curbs frivolous claims and protects artistic freedom. It’s a win not just for Dua Lipa, but for clarity in copyright law.

References:

1. Loeb & Loeb LLP, Larball Publishing Company, Inc. v. Dua Lipa, Loeb.com (Apr. 11, 2025), https://www.loeb.com/en/insights/publications/2025/04/larball-publishing-company-inc-v-dua-lipa.

2. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

3. Fed. R. Civ. P. 56.

4. Fed. R. Civ. P. 702.

5. Fed. R. Civ. P. 26(a)(2)(B).

6. Fed. R. Civ. Procedure, Rule 56(a) (U.S.).

7. Larball Publ’g Co., Inc. v. Lipa, No. 22 CIV. 1872 (KPF), 2025 WL 936536 (S.D.N.Y. Mar. 27, 2025).

8. Mckenna L. Park, LARBALL PUBL’G CO., INC. V. LIPA, Klarquist IP Law Blog (May 20, 2025), https://klarquist.com/blog/federal-circuit-IP/larball-publg-co-inc-v-lipa-dollar-fin-grp-inc-v-brittex-fin-inc-maquet-cardiovascular-llc-v-abiomed-inc/.

9. Blake Brittain, Dua Lipa beats lawsuit claiming she copied ‘Levitating’, REUTERS (Mar. 27, 2025), https://www.reuters.com/legal/dua-lipa-beats-lawsuit-claiming-she-copied-levitating-2025-03-27/.

10. Murray Stassen, Dua Lipa Wins Major Copyright Lawsuit over Hit Song ‘Levitating’ – with a Little Help from Ed Sheeran, Music Bus. Worldwide (Apr. 24, 2025), https://www.musicbusinessworldwide.com/dua-lipa-wins-major-copyright-lawsuit-over-hit-song-levitating-with-a-little-help-from-ed-sheeran/.