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Ninth Circuit edits its own ruling in Shake It Off lyric-theft case

By | Published on Monday 9 December 2019

Taylor Swift

The American appeals court that cited a 1903 ruling when reviving a lyric-theft lawsuit over Taylor Swift’s ‘Shake It Off’ has published a newly edited version of its own judgement. Its conclusion remains the same but the 1903 reference is gone, possibly reducing the impact the judgement will have on future song-theft lawsuits.

Back in 2017, Sean Hall and Nathan Butler accused Swift of ripping off a 2001 song they wrote for 3LW called ‘Playas Gon Play’ on her 2014 hit. Their lawsuit argued that Swift’s famous ‘Shake It Off’ lyric “Cos the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate” was basically a copy of the line “The playas gon play/Them haters gonna hate” from their 2001 track.

However, a judge dismissed the lawsuit on the basis that players playing and haters hating was all too “banal” for Hall and Butler’s original lyric to enjoy copyright protection in isolation. Hall and Butler then appealed, taking the case to the Ninth Circuit appeals court. Judges there then overturned the lower court ruling, arguing that the initial judge had been wrong to dismiss the case simply on the basis that Hall and Butler’s lyrics lacked originality.

They went further though. Citing cases from 1938 and 1903 – the latter a famous line from the often quoted Supreme Court justice Oliver Wendell Holmes Jr – the Ninth Circuit basically said that any assessment as to whether or not a creative work was sufficiently original to enjoy copyright protection should be done by a jury. Not a judge.

The Wendell Holmes quote, from a case on the copyright in an illustration, went: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits”.

However, the appeals court has now reissued its ‘Shake It Off’ judgement with some significant edits. Although it still concludes that the case should be revived, because the original judge was wrong on the originality point, the 1938 and 1903 cases are no longer cited.

It’s not clear why the edits have been made and no explanation was offered by the court. Law360 notes that the federal appeal courts in the US have systems whereby other judges can raise concerns about judgements, but it’s not clear if that has happened in this case.

Though outside the court some experts definitely did raise concerns about the Ninth Circuit’s ‘Shake It Off’ ruling.

They reckoned that the way it cited the 1938 and 1903 cases could be used in future litigation to greatly restrict the ability of judges to quickly throw out blatantly frivolous copyright claims, by making originality always an ‘issue of fact’, and therefore a question for juries.

Some of those experts might have even applied their concerns to another lawsuit relating to ‘Shake It Off’ and players playing and haters hating. Because the songwriter behind another previously dismissed lyric-theft lawsuit over ‘Shake It Off’ – Jesse Graham – is having another go at suing Swift.

The edit, of course, doesn’t directly affect the Hall and Butler case which is still revived and therefore still heading for a second hearing back in the lower court.

A legal rep for the duo told Law360: “It is unfortunate that after providing clear guidance on originality being an issue of fact unsuitable for disposition on a motion to dismiss, albeit in a nonprecedential opinion, the court felt the need to take it away. However, we are still pleased with the outcome and the court’s affirmance that our complaint plausibly alleged originality”.