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Ninth Circuit revives Shake It Off lyric-theft lawsuit

By | Published on Tuesday 29 October 2019

Taylor Swift

Judges in the Ninth Circuit appeals court Stateside have had a good old rummage around the back of a dusty old drawer in a locked room somewhere in their basement and found a century old precedent that allows them to reinstate a song-theft lawsuit against Taylor Swift. Because that’s how much the haters hate. Or maybe they’re players playing.

This is the ‘Shake It Off’ lyric theft case, which is now heading back to a lower court for a second sitting. 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 ‘Shake It Off’. The lawsuit argued that Swift’s famous 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.

Swift’s legal team dubbed the song-theft claim a “money grab” and asked the judge to dismiss the case. Which he did early last year, on the basis that the fact of players playing and haters hating was all too “banal” for Hall and Butler’s original lyric to enjoy copyright protection in isolation. Writing about playing players and hating haters lacked the “originality and creativity” required for copyright to kick in, the judge added.

But Hall and Butler hadn’t finishing playing. Or hating. One or the other. They took the case to the Ninth Circuit appeals court, arguing that whether or not their 2001 lyric could enjoy copyright protection in isolation was too complex a question for a judge to decide on his own without a full court hearing. The matter should have been decided by a jury after both sides had presented their respective arguments in a courtroom.

Yesterday the appeals court basically concurred. Although noting the solid legal precedents cited by Michael W Fitzgerald – the judge in the original case – in his 2018 judgement, the appeals court judges added that Hall and Butler’s lawsuit “still plausibly alleged originality”. They then cited a precedent of their own from a 1930s case, which says that, in copyright disputes, the “question of originality … is one of fact, not of law”. And to that end, a jury should have been asked to consider the originality of Hall and Butler’s lyrics.

Going even further back into legal history for another precedent, the Ninth Circuit then cited a famous copyright ruling from a 1903 US Supreme Court case. In it, the often quoted Supreme Court justice Oliver Wendell Holmes Jr cautioned judges against appointing themselves the final authority on issues of originality in copyright disputes.

The 1903 Bleistein v Donaldson Lithographing Co dispute actually centred on whether adverts could be treated as works of art protected by copyright. Snooty judges in the lower courts ruled not. Holmes said that it wasn’t the job of judges to make such artistic judgements.

The famous extract from that case, cited by the Ninth Circuit in the ‘Shake It Off’ judgement, goes: “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”.

“At the one extreme”, the judgement went on, “some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke … At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge … and the taste of any public is not to be treated with contempt”.

So, basically, while a highly educated district court judge may consider the line “The playas gon play/Them haters gonna hate” too “banal” to enjoy copyright protection, what would a room full of pop loving plebs think? Are those less educated haters gonna hate? Are those plebby players gonna play? Given recent jury rulings in song-theft cases in the US, they’d probably decide that Swift should pay Butler and Hall ten million dollars.

The Ninth Circuit concluded yesterday: “Justice Holmes’ century-old warning remains valid. By concluding that, ‘for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here’, the district court constituted itself as the final judge of the worth of an expressive work. Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court’s dismissal”.