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Taylor Swift seeks summary judgement in her ongoing Shake It Off lyric-theft dispute

By | Published on Wednesday 21 July 2021

Taylor Swift

Taylor Swift is having another go at ending a long running lyric-theft legal battle over her 2014 hit ‘Shake It Off’, seeking summary judgement in her favour. Swift’s legal reps argue that, through the discovery process, their client’s song-theft accusers – Sean Hall and Nathan Butler – have “admitted away” their claim that ‘Shake It Off’ infringes the copyright in their 2001 song ‘Playas Gon Play’.

Hall and Butler sued Swift over the lyrical similarities between ‘Playas Gon Play’ and ‘Shake It Off’. The former contains the line “the playas gon play/them haters gonna hate”. In the latter, of course, Swift sings “the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate”.

In 2018, a US district court judge dismissed Hall and Butler’s lawsuit on the basis that the fact of players playing and haters hating was all too “banal” for the duo’s 2001 lyric to enjoy copyright protection in isolation. However, Hall and Butler took their case to the Ninth Circuit appeals court, where appeal judges criticised the lower court judge for reaching such a speedy conclusion.

With the case back in the district court, last year Team Swift tried to have the matter dismissed, basically by arguing that because the similar lyrics in the two songs are not identical, what they actually share is an idea not an expression. And copyright only protects expressions of ideas, not ideas themselves. However, the judge overseeing the dispute – possibly cautious because of the Ninth Circuit’s previous intervention – declined to throw the case out of court for a second time.

In a new legal filing, Swift’s lawyers argue that further evidence gathered and discussion undertaken during the discovery phase of the ongoing dispute has only strengthened their case and that, as a result, the judge should now issue a summary judgement in their client’s favour.

They write: “The parties have completed expert disclosures and discovery as to the ‘extrinsic test’ and plaintiffs and their sole expert have admitted away plaintiffs’ claim that the song ‘Shake It Off’ infringes the copyright in the song ‘Playas Gon Play'”.

The ‘extrinsic test’ is a principle used in copyright cases in courts sitting under the Ninth Circuit whereby, when two works are assessed for similarity, only those elements of each work that are specifically protected by copyright are considered, with unprotectable aspects first filtered out.

The new legal filing continues: “Plaintiffs admit that ‘Playas’ and ‘Shake It Off’ are very different in their music and also their lyrics. ‘Playas’ is a love song in which ‘so-called friends’ try to break up the singer and her romantic partner, while in ‘Shake It Off’ the singer recounts that people criticise her but she shakes it off and finds comfort in music”.

The only similarity, they then go on, is the use of two similar ‘tautophrases’, which, in case you wondered, are phrases that repeat an idea by repeating the same words.

“Plaintiffs have narrowly limited their claim”, the lawyers add, “to their contention that ‘Shake It Off’ copies ‘Playas’ use of the phrases ‘players gonna play’ and ‘haters gonna hate’ as the first two tautological phrases in a series of four tautophrases that supposedly convey the idea that the world is full of untrustworthy people we should ignore”.

“However, plaintiffs and their expert admit that ‘players gonna play’ and ‘haters gonna hate’ are public domain and that ‘Playas’ and ‘Shake It Off’ vary those unprotected phrases in different ways”.

“They also admit that although ‘Shake It Off’ includes a third and fourth tautophrase, they are different phrases than ‘Playas’ tautophrases. Also, ‘Playas’ has an unbroken sequence of four, bare tautophrases, but ‘Shake It Off’ follows its two variations of the preexisting ‘players gonna play’ and ‘haters gonna hate’ phrases with the lyrics, ‘Baby, I’m just gonna shake, shake, shake, shake, shake / Shake it off / Shake it off'”.

“As a result of the undisputed facts”, they then argue, “plaintiffs’ claim is merely that ‘Shake It Off’ copies the unprotected idea of including four tautophrases in a chorus, with different public domain tautophrases used differently. Applying this Circuit’s ‘extrinsic test’ confirms that ‘Shake It Off’ and ‘Playas’ are not substantially similar and, instead, are very different”.

“As a result, plaintiffs’ claim fails both because the songs are not substantially similar in protected expression and also because they lack substantial similarities probative of copying”.

Did you follow all that? “The extrinsic test establishes there is no genuine dispute that, whether analysed as musical works, as literary works, or under a selection-and-arrangement theory, ‘Shake It Off’ is not substantially similar in protected expression to ‘Playas'”, the lawyers conclude, before “respectfully” requesting a summary judgement in their favour.

It remains to be seen how the judge now responds.