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Last month, the Ninth Circuit Court of Appeals reinstated a copyright infringement suit brought against Taylor Swift based on her song Shake It Off.  The trial court, on motion from Swift, had dismissed the case because the claims of copyright infringement made against her were implausible. It appears the matter will now need to be decided by a jury.

3LW, an all-girl group, released their song Playas Gon’ Play written by Sean Hall and Nathan Butler in 2000.  In 2001, Playas Gon’ Play peaked at number 81 on Billboard’s Hot 100 chart.  On March 7, 2001, the video featuring Playas Gon’ Play appeared as the number 7 video on Total Request Live, a music video request show then-broadcast on MTV.

The lyrics to the chorus of Playas Gon’ Play are: 

Playas, they gonna play / And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is / That’s the way it is.

Swift released her song Shake it Off in 2014.  Shake it Off debuted at number 1 on Billboard’s Hot 100 chart and remained on the chart for 50 consecutive weeks.  More than 9,000,000 copies of Shake it Off have been sold and more than 6,000,000 copies of Swift’s album 1989—featuring Shake it Off—have been sold.

The lyrics to the chorus of Shake it Off are: 

‘Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate / Baby I’m just gonna shake, shake, shake, shake, shake / Shake it off / Shake it off / Heartbreakers gonna break, break, break, break, break / And the fakers gonna fake, fake, fake, fake, fake / Baby I’m just gonna shake, shake, shake, shake, shake / Shake it off / Shake it off. 

When Hall and Butler sued alleging the lyrics of Shake it Off infringed their copyrights, Swift immediately moved for dismissal.  Judge Michael W. Fitzgerald of the District Court sided with Swift and dismissed the case, finding the assertion of copyright infringement implausible.  However, on appeal, the Ninth Circuit reversed and remanded the case for further proceedings by the trial court.

“The issue at both the trial court level and on appeal was whether the phrase ‘Playas, they gonna play / And haters, they gonna hate’ is entitled to copyright protection,” according to Jim Nikolai, an intellectual property lawyer in DeWitt’s Minneapolis office.  “Typically, short phrases are only protectable as trademarks, and then only if they are being used to indicate the source of goods or services.”

“In fact, the U.S. Copyright Office has a policy against registering copyrights on individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play-on-words,” Nikolai continued.  According to a circular published by the U.S. Copyright Office entitled Works Not Protected by Copyright, “Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship.”  This is the essence of the argument made by Taylor Swift.

According to Nikolai, three findings of the trial court are highly relevant and support Swift’s position.  

First, Hall and Butler did not contend that Playas Gon’ Play and Shake it Off share any significant rhythmic, melodic, harmonic, or other musical similarities. 

Second, Hall and Butler focused exclusively on similarities between snippets of their lyrics: “Playas, they gonna play / And haters, they gonna hate” verses Swift’s lyrics: “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.” 

Third, Hall and Butler acknowledged that the concepts of players / playas, haters, and player / playa haters were already firmly rooted in pop culture at the time they wrote Playas Gon’ Play.  “Apparently without objection by Hall and Butler, the judge took judicial notice of many band names and song titles referencing ‘players’ and ‘haters’ that came before Hall and Butler wrote their song,” Nikolai continued. 

Hall and Butler rested their argument on the claim that “[t]he combination of playas/players playing along with hatas/haters hating . . . was completely original and unique,” according to Judge Fitzgerald.   As explained in the District Court’s order dismissing the case, players, haters, and player haters had received substantial pop culture attention prior to 2001 . . . . [P]opular songs had each addressed the subjects of players, haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey . . . . In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough . . . . For such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here.

So why did the Ninth Circuit reverse and remand?  The court focused on whether the sufficiency of creativity and originality to warrant copyright protection is a question of fact for a jury to decide or a question of law for a judge to decide.

The court has long recognized originality as a question of fact.   As the Ninth Circuit stated: “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.”  (emphasis added.)

Nikolai noted, “the Ninth Circuit’s ruling is silent on whether the phrase ‘Playas, they gonna play / And haters, they gonna hate’ is, in fact, sufficiently original to warrant protection under the Copyright Act.”  Instead, the Ninth Circuit suggested that this is a question of fact for a jury, rather than a judge, to decide.  

Jim Nikolai and the other lawyers in DeWitt’s Intellectual Property Practice Group have the skills necessary to protect your creative works and both prosecute and defend against infringement claims.  Jim can be reached by telephone at (612) 305-1518 and by email at jtn@dewittllp.com.