U.S. District Judge Michael Fitzgerald of the Central District Court of California has dismissed a lawsuit against Taylor Swift, in which songwriters Nathan Butler and Sean Hall alleged that her hit song “Shake It Off” ripped off the lyrics to 3LW’s “Playas Gon’ Play,” which the pair wrote for the ’90s girl group. Butler and Hall’s argument centered on the idea that the hook for Swift’s song—“Players gonna play, play, play, play, play, haters gonna hate, hate, hate, hate, hate”—infringed on their song’s lyrics, “Playas, they gonna play, And haters, they gonna hate,” an argument that the court failed to find compelling.
At the request of Swift’s lawyers, the court took judicial notice of the numerous songs which invoke player’s playing and haters hating, ranging from Fleetwood Mac’s “Dreams” (“players only love you when they’re playing”) to Playa Hater, a 1997 song by Notorious B.I.G., which contains the lyrics: “Playa, turn your head round,” and “We have, the playas, and we have, the playa haters.” The court also agreed with the plaintiff’s lawyers however, that just because the phrase is short, brevity does not preclude copyright protection, citing a case Fischer v. Forrest that I argued on behalf of the plaintiff in New York. What the court said distinguished this case from Fischer and others that protected short phrases was the the lyrics were “too banal” to warrant protection.
As with any other artistic medium, a song, or a portion of a song, must be sufficiently original and creative to warrant copyright protection. The court noted:
[C]opyrightable works require two ingredients. The first is originality, which signifies that the work originates in the author rather than having been copied from past sources. The second is creativity, signifying that the work has a spark that goes beyond the banal or trivial. Those two elements, of course, apply to the domain of music no less than to any other subject matter of copyright protection. Although the two are distinct, unfortunately, many cases refer interchangeably to each of them as “originality.” “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.”
So its a weird win for Taylor Swift. On the one hand, she got the case against her dismissed but on the other hand her lyrics were found to be boring and banal. But what should she have expected? After all judges gonna judge.
Follow me on Twitter @oscarmichelen