Music Notation for Lawsuits

I've long been fascinated by what music notation does well and does poorly, what it can and can't tell us, which types of notation are meant to be descriptive and which types are prescriptive, and which types prove the most useful to which types of musicians.

My dad sent sent me this article about a lawsuit against Dua Lipa for copyright infringement. Summary: the copyright holders of a 1979 song called "A Wiggle and a Giggle All Night" (it's as weird as it sounds) sued Dua Lipa, alleging that the melody of her 2020 hit "Levitating" was copied from their song. There was also a third song in the mix, also from 1979, called "Don Diablo." (This song had been previously found to have infringed on "Wiggle and Giggle," and is now owned by the same copyright holders as a result of that earlier lawsuit.)

But the thing that interested me more than the details of the lawsuit was the inclusion of this musical example:

Something that wouldn't be included in traditional musical notation is the numbered pitches. I'm trying to figure out why the pitches are numbered, and I have a hypothesis: for a non-musician to talk about this example, it might be helpful to refer to "pitch number six," as opposed to "the e of beat 2 in measure 1." However, there are some musical elements that don't make sense with the pitch numberings. In the "Wiggle" example, pitches 8 and 9 are both given a number, but those are not two separate pitches. Because of the tie, they represent a single pitch with a single attack (the word "saw" is sung here). This makes me think that the numbers are not, in fact, labeling pitches, but sixteenth notes, or the subdivision of the beat. But that doesn't hold up either, because the eighth note labeled 15 in the same example only gets one number. This is the exact same duration as the note that gets two numbers; it's just notated differently because it falls within a single beat, rather than over the course of two beats. This numbering system leads to the downbeat of measure 2 being labeled as 17 in "Don Diablo" and "Levitating" and 16 in "Wiggle." This means that the numbers are not labeling pitches, but they're also not labeling subdivisions; they're labeling noteheads. The obvious question here is why? You could still say that labeling the noteheads makes more sense to a person who doesn't read music notation and doesn't know what a tie means, but I'm not sure that I would want someone who doesn't understand it to be making a decision that's entirely based on music notation.

Whether or not you read music notation, I do think it is clear that these three melodies are similar. And yet, the suit against Dua Lipa was dismissed. “The alleged similarities — a descending scale in which each pitch is repeated on evenly spaced notes and a common clave rhythm— are unprotectable, and the result of the coincidental use of basic musical building blocks," said attorney Christine Lepera. I'm not sure if Ms. Lepera has musical training, but I would guess that she does. This downward scalar motion is incredibly common across many genres of music. It's something that Heinrich Schenker called a five-line, and is incredibly common as both a background structure and a foreground feature. It's also worth noting that the fact that "Levitating" is in minor and the other two songs are in major, and harmonized accordingly, means that the descending scalar motion sounds contextually very different in her song than it does in the other two. There was an extremely high concentration of music copyright infringement cases maybe ten years ago, where it seemed like every case was decided for the plaintiff, and it was pretty terrifying for songwriters. Most of these cases involved the use of stock musical figures, and even clearly non-copyrightable musical elements, like groove. But we seem to be turning a corner and returning to a more logical approach where we trust the musical analysis of experts. (This was also the case with the recent lawsuit again Ed Sheeran.) Decisions like this give me hope!