Larball Publishing Company, Inc. v. Lipa

Background

Larball Publishing Company, Inc. and Sandy Linzer Productions, Inc. claimed copyrights in the 1979 disco song “Wiggle and Giggle All Night,” or “Wiggle.” They alleged that Dua Lipa and the other defendants infringed that copyright through “Levitating” and related versions. The plaintiffs also asserted claims involving “Don Diablo,” but the defendants’ motion addressed only the claims involving “Wiggle.” The opinion states that the plaintiffs asserted direct, contributory, and vicarious copyright-infringement claims under the Copyright Act.

The plaintiffs alleged that “Levitating” copied a signature melody and a repetitive rhythm from “Wiggle.” According to the allegations, the melody appeared in a substantial portion of “Levitating,” and the songs used similar note patterns, intervals, rhythms, and bass-drum accompaniment. The plaintiffs also alleged that listeners and industry commentators had noticed similarities between the songs.

Legal Standard

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint contains enough factual allegations to state a legally plausible claim. For copyright infringement, a plaintiff must allege ownership of a valid copyright and unauthorized copying. Unauthorized copying may be shown through evidence that the defendant had access to the earlier work and that the works are sufficiently similar. A plaintiff may avoid pleading access if the works are “strikingly similar”—so similar that independent creation is not a realistic explanation.

Court’s Analysis

The court rejected the argument that the plaintiffs improperly combined their allegations about “Wiggle” and “Don Diablo.” The complaint identified each song and provided allegations about the allegedly copied elements and the alleged routes of access for each work. The court therefore treated the claims as sufficiently differentiated.

The court also took judicial notice of “Wiggle’s” copyright registration. Although the complaint did not provide the registration number, the plaintiffs supplied it in their opposition brief, and the court found that the registration could be considered from the Copyright Office’s records. The court therefore did not dismiss the claims for failure to allege ownership of a valid copyright.

The court agreed with the defendants that the plaintiffs had not adequately alleged access to “Wiggle.” The plaintiffs’ corporate-receipt theory relied on relationships involving Sony, RCA Victor, and other entities, but the complaint did not explain how those relationships connected “Wiggle” to the creators or publishers of “Levitating.” The court also found that “Wiggle’s” brief popularity in the Netherlands in the late 1970s and early 1980s, its availability on streaming services, general statements about inspiration from older music, and the fame of related musicians did not establish a reasonable possibility that the defendants had encountered the song.

However, the court held that the lack of pleaded access did not defeat the claims because the plaintiffs plausibly alleged striking similarity. The allegations included technical, side-by-side comparisons of the songs’ melodies and rhythms, an assertion that the allegedly copied melody made up about one-third of “Levitating,” and allegations that others had independently observed similarities. The court emphasized that proving striking similarity later would be difficult, but held that the plaintiffs had alleged enough at the pleading stage to proceed to discovery.

Disposition

The court denied the defendants’ Rule 12(b)(6) motion to dismiss the “Wiggle”-related copyright claims. The claims may proceed to discovery under the striking-similarity theory, even though the access theory was inadequately pleaded. The defendants were ordered to answer by August 29, 2023, and the parties were ordered to submit a proposed case-management plan by September 12, 2023. The opinion also states that the claims against Jonathan Lyndale Kirk had previously been dismissed without prejudice after the plaintiffs voluntarily dismissed them; his pending motion to dismiss therefore became moot.