[Guest post] Dua Lipa and Warner Music sued for copyright infringement

Dua Lipa and Warner Music are being sued by talk box inventor and singer, Bosko Kante, for breach of contract and copyright infringement in the hit song 'Levitating'. This guest post is kindly provided by Jonathan Coote: 

Dua Lipa, along with co-Defendants, Stephen Kozmeniuk (pka Koz) and Warner Music Group (WMG), have been sued in California by musician and talk box inventor Bosko Kante for copyright infringement and breach of contract relating to Lipa's song 'Levitating' (Case 2:23-cv-06186-HDV-PD). 

 

Kats worldwide may be aware of the hit song 'Levitating' by Dua Lipa, which was the fifth single from her second studio album Future Nostalgia. A massive commercial success, it was Billboard's Year-End Hot 100 single of 2021. But as the old adage goes, "where there's a hit, there's a writ", or, increasingly with multiple lawsuits affecting some of the biggest songs, "if you're top of the pops, the writs won't stop"… 

"My sugarboo, I'm [litig]ating" 

The song has already been the subject of two disputes: 

• Firstly, in California, from Florida reggae band Artikal Sound System, who alleged that Lipa had copied the 'Levitating' hook from their 2017 song 'Live Your Life'. This case was dismissed in June 2023 in an order by Judge Sykes, for failure to plead copying – primarily for lack of 'access'. 

• Secondly, in New York, from L. Russell Brown and Sandy Linzer who allege that Lipa copied their composition 'Wiggle and Giggle All Night' (recorded by Cory Daye in 1979) and 'Don Diablo' (for which they own the rights). This case appears not yet to have been heard or publicly settled. 

Background 

The present case is being brought by Bosko Kante who is the inventor of and performer on the ElectroSpit, a digital tubeless talk box. If this means nothing to you, according to the pleadings, a talk box "allows musicians to modify the sound of a musical instrument by shaping the frequency content of the sound and to apply speech sounds (in the same way as singing) onto the sounds of the instrument, and to control the modification of the instrument’s sounds by changing the shape of the mouth, and vocalizing the instrument’s output into a microphone" [47]. If that still hasn't cleared it up, check out this video of Kante demoing the ElectroSpit. 

Lipa describes the impact of Kante's talk box on the song in an interview on podcast SongExploder about the making of 'Levitating': "There's like little bits layered here and there that just gives it like a cool like old school, eighties, zap, funk undertones into it" (transcript here). 

Kante claims that he wrote and recorded vocal lines with his talk box for use in 'Levitating', but that he only consented for these to be used on the original recording and did not consent for these to be used on three remixes, namely: 

• the "Blessed Madonna Remix", by American DJ the Blessed Madonna, featuring Madonna and Missy Elliott; 

• the "DaBaby Remix" featuring rapper DaBaby; and 

• a remix for the American Music Awards, the "AMA Remix", 

(together the "Levitating Remixes"). 

Kante alleges that the Defendants used additional lyrics and melodies created by him which weren't used on the original track but were used in the Levitating Remixes. To this Kat's ears, this can most clearly be heard in the chorus of the 'Blessed Madonna Remix'. The Levitating Remixes have been extremely commercially successful (for example, the 'DaBaby Remix' has over 1.6 billion plays on Spotify). 

Kante alleges both 1) copyright infringement and 2) breach of an oral agreement. This is different from the earlier copyright disputes relating to 'Levitating' because, unlike in those cases, Kante was a credited collaborator on the track. There are therefore no issues of establishing copying and 'access'. Instead, the issues are what rights subsisted in Kante's work, whether the Defendants were entitled to use them in the Levitating Remixes and, if so, under what terms. 

1) Copyright infringement

Kante pleads that he is the actual and beneficial owner of part of the composition of 'Levitating', that he is the beneficial owner of sound recordings for the talk box elements, and that the use of his composition and recording in the Levitating Remixes infringes his rights. 

Lipa, Warner, et al. have not yet commented on the lawsuit. However, it is foreseeable that the Defendants' principal defence could be that Kante licensed his rights to the Defendants during the recording process in such a way that included consent to use his rights on the Levitating Remixes. It is, therefore, likely that the copyright infringement claim would effectively follow the breach of contract claim. 

Other arguments that could potentially be made could be questioning whether Kante is in fact the owner of the recordings (which are typically owned by labels) or that Kante's contributions were insufficiently original to constitute a musical work, i.e. that he was just a performer and not a co-songwriter. 

2) Breach of contract 

The main claim brought by Kante is that the use of the talk box recordings in the Levitating Remixes are in breach of his oral agreement with the Defendants. Kante claims that there was an express agreement to pay him a fixed sum plus a share of neighbouring rights based on a split between 7 musicians, but that the Defendants "explicitly agreed that there would be no reuse or sampling of [his] Work beyond the use for the original version of the track, 'Levitating'" [47]. 

The "events giving rise to the claim" are said to have taken place in Central California [10], and Californian law may apply to the alleged oral contract. The main issues for the court (note that Kante has demanded a jury trial) are likely to be: 1) whether there was indeed an oral contract, 2) the terms of that contract – specifically the scope of the consent to use of Kante's works and whether there was a clear prohibition on reuse or sampling in remixes – and 3) whether the contract has been breached by the Defendants by including the samples in the Levitating Remixes. In addition, they may also consider the value of the royalties which should be due to Kante.  

Kante also alleges that the Defendants added multiple additional musicians in the original version of 'Levitating' in breach of the original agreement, significantly reducing his neighbouring rights royalties. 

3) Damages, declaratory relief and injunction 

In respect of copyright infringement, Kante claims damages of $2 million in addition to profits earned by the Defendants attributable to the infringement (estimated by Kante at $20 million) or, alternatively, $150 thousand for each act of infringement as statutory damages for willing infringement. In respect of the claim for breach of contract, Kante is seeking $2 million. 

Kante also seeks declaratory relief, and injunctive relief to restrain further exploitation of the Levitating Remixes. 

4) Why should you have written agreements as musicians? 

It can often be difficult to determine with certainty the terms of an oral agreement. So, if you are writing or recording a song with a collaborator or with session musicians, it's important to assess what roles there are and therefore what rights may subsist before agreeing appropriate written contract(s). 

For example, a session musician who doesn't write anything may be entitled to performers' rights, whereas, a co-collaborator/songwriter would be a joint or co-author of the musical work, and may also be entitled to moral rights (depending on the country) and performers' rights if they play or sing on the track. Separately, if someone records samples to be used on your song, absent an agreement to the contrary, it may be that they own the rights to those recordings. 

All of these contributions provide musicians with different rights. Without well-drafted written agreements signed pre-release which set out ownership and royalty splits as well as the mechanisms for determining future exploitation (e.g. remixes), it can be difficult to determine who owns which rights and whose consents are needed. 

5) Further reading / listening 

For a breakdown by Dua Lipa and Koz of the making of the song, check out the SongExploder podcast. 

For those musically inclined and interested in one of the earlier (since dismissed) copyright disputes involving 'Levitating', check out this video by YouTuber Adam Neely, which breaks down the alleged similarities, and provides several examples of earlier songs which also share those similarities.