A lawsuit filed by “one of the world’s top talk box artists” against Dua Lipa, and her label Warner Music, over the talk box vocal performance he created for her hit ‘Levitating’ has been allowed to proceed.
The dispute is over the use of Bosko Kante’s vocal performance on remixes of ‘Levitating’, which he says was never approved. Lipa’s team tried to get the lawsuit dismissed by arguing that Kante had “failed to specify which exact portions of his recordings were used in the remixes”, which meant he had not sufficiently proven the ‘substantial similarity’ requirement for a copyright infringement claim to proceed.
However, Judge Hernán D Vera has now rejected that argument. He ruled that Kante had “adequately pled a copyright infringement claim by alleging that ‘all or substantially all’ of his copyrighted recording - ie his actual voice - was used in the remixes without his permission”. That was sufficient for his lawsuit to proceed, Vera added, stating there was no requirement on the producer to “identify, second-by-second, which portions were used”.
The ‘substantial similarity’ requirement comes up a lot in cases where it is alleged that one song infringes the copyright in another. Meeting the requirement can be tricky and, in the US, courts in New York and California - where a lot of copyright cases are filed - take a slightly different approach when assessing if two works are substantially similar.
That said, with music cases, assessing similarity is trickier when the dispute centres on a musical composition rather than a recording, so that the writers of the new song are accused of lifting musical elements from an earlier song. Lots of lawsuits are filed over disputes of that kind, of course. Indeed, two were filed in relation to ‘Levitating’.
However, this lawsuit focuses on the use of a recording made by Kante, meaning it’s more of an uncleared sample lawsuit than a song-theft lawsuit, which should make the ‘substantial similarity’ question easier to answer. Basically, was a segment of the earlier recording included in the new recording or not?
Elsewhere in his judgement declining Lipa’s motion to dismiss, Vera notes that, during oral arguments, “defendants’ counsel conceded that at least some portion of the Kante recording was used”. And, the judge went on, “defendants are plainly on notice as to the type of infringing conduct (the unauthorised use of the Kante recording)” and “where the infringement can generally be found (within the 'Levitating' remixes)”.
Kante is “not required at this stage to conduct a forensic analysis of the sound files (to which, in any case, he does not have access) to provide further detail about where precisely in the 'Levitating' remixes the infringement is found”.
In his original lawsuit, Kante explained that “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 onto the sounds of the instrument”.
Kante has developed his own version of the talk box, known as the ElectroSpit Talk Box, and was asked by ‘Levitating’ co-writer Stephen Kozmeniuk to create and perform talk box vocals to feature on that record.
There was no formal contract between Kante and Kozmeniuk. However, Kante says that he had an oral agreement with Kozmeniuk that his "performance could be used by defendants in the original recording of the track only, and that there would be no sampling or reuse of plaintiff’s performance by defendants”.
And yet there were three remixes which, Kante’s lawsuit claimed, “sampled and incorporated a greater amount” of his performance “than that used in the original version”.
Although Lipa and Warner have failed to get Kante’s lawsuit dismissed, the judge declined a request from the producer under state law to force Warner to declare how much income was generated by the ‘Levitating’ remixes.
That is unnecessary, Vera said, because this is a copyright case and, if successful, Kante can seek ‘actual damages’ related to how much money the remixes made. Therefore that information will be shared down the line and there is no need for a specific court order at this point.
