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Taylor Swift has one last go at getting the Shake It Off song-theft lawsuit dismissed

By | Published on Wednesday 29 December 2021

Taylor Swift

Taylor Swift is having one last go at stopping her song-theft legal battle over the lyrics of ‘Shake It Off’ from ending up before a jury, urging the judge hearing the case to rethink his most recent ruling. It’s something of an ambitious ask at this stage, but is worth a try I guess.

Songwriters Sean Hall and Nathan Butler accuse Swift of ripping off their 2001 song ‘Playas Gon Play’ on her 2014 hit. The former had the lyric “the playas gon play/them haters gonna hate”, while ‘Shake It Off’ famously includes the line “the players gonna play, play, play, play, play/and the haters gonna hate, hate, hate, hate, hate”.

Hall and Butler first went legal in 2017. However, the following year judge Michael Fitzgerald dismissed their lawsuit, concluding that their 2001 lyrics about ‘playas’ playing and ‘haters’ hating were simply “too banal” to enjoy copyright protection in isolation, which meant Swift had not infringed any copyrights with her very similar lyrics.

But the duo took their case to the Ninth Circuit appeals court and, in 2019, judges there criticised the lower court judge for reaching such a speedy conclusion on the all important question of whether or not the two key lines of ‘Playas Gon Play’ could be protected by copyright.

As a result, the whole matter was sent back to Fitzgerald’s court for take two. Swift’s team have been busy ever since trying to have the whole thing dismissed for a second time, but so far without success. Fitzgerald most recently declined to dismiss the case earlier this month.

Despite admitting during a hearing in September that the Swift side’s arguments were “really strong”, the judge basically concluded that those arguments hadn’t really changed since the case returned to his court.

And if the Ninth Circuit thought it was inappropriate to dismiss the lawsuit on summary judgement first time, they’d probably reach the same conclusion second time.

But Fitzgerald was wrong to refuse dismissal earlier this month, Swift’s lawyers say in yet another legal filing submitted with the court just before the Christmas break. And he reached the wrong decision by failing to properly apply the so called ‘extrinsic test’.

When declining to dismiss the case earlier this month, the judge concluded that there is “a genuine dispute as to the potential substantial similarity between the lyrics and their sequential structure” in the two songs, and that dispute should be considered by a jury.

However, that conclusion, Swift’s side says, “does not apply the extrinsic test to that claimed substantial similarity, and that test mandates, inter alia, that ‘it is essential to distinguish between the protected and unprotected material in a plaintiff’s work'”.

Basically, the lyrics that could be seen as substantially similar are the common phrases about players playing and haters hating. And, say’s Swift’s new filing, even Hall and Butler have admitted that those statements in isolation “are unprotected and in the public domain”.

The plaintiffs have pointed out how both songs also have other albeit different tautological phrases alongside those related to players playing and haters hating. Hall and Butler’s song says “ballers, they gon ball/shot callers, they gonna call”, while in ‘Shake It Off’ Swift sings about how heartbreakers are gonna break, and fakers are gonna fake.

“Even assuming for the sake of argument that [these other] lyrics share the same idea or concept”, Swift’s new legal filing goes on, “that does not satisfy the extrinsic test [either] because ideas are not protected by copyright and, as a result, also must be disregarded”.

With all this in mind, the filing continues, Fitzgerald’s most recent decision “does something that, as far defendants are aware, no other court has done, namely finding a potentially valid infringement claim in the use of two short public domain phrases along with allegedly similar ideas and concepts. Defendants respectfully submit that the ruling should be revisited”.

The filing then concludes: “The presence of versions of the two short public domain statements and two other tautologies in both songs – a commonality that the court has noted – simply does not satisfy the extrinsic test. Otherwise, plaintiffs could sue everyone who writes, sings, or publicly says ‘players gonna play’ and ‘haters gonna hate’ alone with other tautologies. To permit that is unprecedented and ‘cheats the public domain'”.

It would be surprising if this latest filing is enough to change Fitzgerald’s mind. None of these arguments are really new, which means the judge will likely reach the same conclusion, ie if the Ninth Circuit felt a summary judgement was inappropriate before, they’d feel the same way now.

Speaking to Billboard, a legal rep for Hall and Butler said Swift’s latest motion was “groundless”, adding: “All it asks is for the court to reverse itself because Swift is unhappy with the ruling”.

“She raised these arguments before and they were rejected”, the legal rep then noted, before concluding: “The precedent is clear that such motions are routinely denied because the rules are not designed to give an unhappy litigant one additional chance to sway the judge – we are confident the court will adhere to this precedent here”.