U.S. District Judge Katherine Polk Failla said L. Russell Brown and Sandy Linzer failed to show ‘substantial similarity’ between ‘Levitating’ and their song ‘Wiggle and Giggle All Night’, though some listeners could hear similarities.
The plaintiffs alleged that ‘Levitating’ copied its ‘signature melody’ from ‘Wiggle’ and another song to which they held a copyright.
But the judge found that melody was unprotectable in light of November’s federal appeals court decision that Ed Sheeran’s 2014 song ‘Thinking Out Loud’ did not illegally copy Marvin Gaye’s classic ‘Let’s Get It On’.
Failla also found several other alleged similarities between ‘Levitating’ and ‘Wiggle’ were commonplace, having appeared in Mozart and Rossini operas, Gilbert and Sullivan operettas, and ‘Stayin’ Alive’ by the Bee Gees.
“A musical style, defined by plaintiffs as ‘pop with a disco feel,’ and a musical function, defined by plaintiffs to include ‘entertainment and dancing,'” cannot possibly be protectable,” Failla wrote.
To hold otherwise, she said, would ‘completely foreclose the further development of music in that genre or for that purpose’.
Jason Brown, a lawyer for the plaintiffs, said they plan to appeal.
“This case has always been about standing up for the enduring value of original songwriting,” Brown, who is L. Russell Brown’s nephew, said in an email.
Lawyers for Lipa, her label Warner Records and other defendants did not immediately respond to requests for comment.
They called it implausible to believe Lipa, 29, heard ‘Wiggle’ before writing ‘Levitating’, and said the plaintiffs could not ‘monopolize one of the most commonplace and rudimentary elements of music: the use of a minor scale’.
Brown’s other songs include Tony Orlando and Dawn’s ‘Tie a Yellow Ribbon Round the Ole Oak Tree’ and ‘Knock Three Times’, while Linzer’s songs include the Four Seasons’ ‘Let’s Hang On!’ and ‘Working My Way Back To You’.
‘Levitating’, from Lipa’s album ‘Future Nostalgia’, was the No. 1 song on Billboard’s 2021 year-end chart.