Image Credit: Ben Hassett / ELLE
Despite the success of Taylor Swift’s latest album, Lover, she has not been able to successfully “shake off” a copyright infringement suit against her. Monday, a Ninth Circuit three-judge panel remanded a copyright suit regarding lyrics in Taylor Swift’s “Shake it Off” back to the district court for further proceedings.
Sean Hall and Nathan Butler sued Taylor Swift for copyright infringement over her 2014 hit song, “Shake it Off.” Hall and Butler claim that Swift’s song infringed on their 2001 song, “Playas Gon’ Play,” which they wrote for the early-2000s female group, 3LW. 3LW’s “Playas Gon’ Play” contains the lyrics: “Playas, they gonna play / And haters, they gonna hate.” Swift’s “Shake it Off” contains the lyrics: “Cause the players gonna play, play, play, play play / And the haters gonna hate, hate, hate, hate, hate.” Hall and Butler argue that Swift’s song stole their lyrics.
United States District Court Judge Michael W. Fitzgerald dismissed the original lawsuit in February 2018. In dismissing the case, Judge Fitzgerald cited a lack of originality in the lyrics at issue. He noted that “By 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters . . . The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” His opinion concluded, “In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”
The Ninth Circuit’s three-judge panel ruled that this conclusion was premature. In reversing the district court’s decision, the panel notes that, in regard to copyright law, originality is a question of fact. As such, the panel finds that the district court overstepped its bounds in that it improperly “constituted itself as the final judge of the worth of an expressive work.” The panel reversed and remanded the case, stating that absence of originality is not established on the face of the complaint or through any judicially noticed matters.
The panel’s decision sends the case back to the U.S. District Court for further proceedings. Stay tuned for future updates regarding the litigation.
Liz Costello, University at Buffalo School of Law, Class of 2020. Liz is the Treasurer of the Buffalo Sports and Entertainment Law Society, an Articles Editor of the Buffalo Law Review, and an anticipated associate at Rupp Baase Pfalzgraf Cunningham LLC. Having grown up in Los Angeles with an entertainment attorney mother, Liz is especially interested in the legal issues surrounding music, film, television, and sports. Her favorite activities include going to local live music and sporting events.