Don’t Hate the Players (Nor the Haters), Hate the Game: A “Swift” Dismissal in Copyright Law and the Banalities of Lyricism

Mark Edward Blankenship Jr., Staff Editor[1]

Back in 2015, Jesse Braham filed suit against popstar Taylor Swift, because her song “Shake It Off” infringed a copyright covering his song, “Haters Gone Hate.”[2] Unfortunately for Braham, he was unable to state a claim by not only proving that his work was original, but by fulfilling the substantial similarity requirement for an infringement claim.[3] Therefore, the court wittingly concluded that “[a]s currently drafted, the Complaint [had] a blank space—one that require[d] Braham to do more than write his name.”[4] But this would not be the only lawsuit that the popstar would “shake off.”

Recently, songwriters Nathan Butler and Sean Hall filed suit against Swift over the same song, for allegedly infringing upon lyrics from R&B group 3LW’s “Playas Gon’ Play”, which was released almost twenty years ago. Judge Michael W. Fitzgerald of the U.S. District Court for the Central District of California, dismissed the lawsuit for failing to prove copyright infringement.[5] Within a couple of days, judgment was entered in favor of Swift.[6] Although it has been reported that the songwriters’ attorneys plan to appeal Fitzgerald’s holding to the Ninth Circuit due to error in assessing the originality of the lyrics,[7] it is uncertain whether that will be successful.

The Copyright Act protects original works of authorship fixed in a tangible medium.[8] The work must also be creative, or in other words, it must have a spark that goes beyond the banal or trivial.[9] In light of the plethora of instances in pop culture where players and haters have been incorporated, Fitzgerald held that the lyrical phrase in question was not creative at all, but banal.[10]

Here, Fitzgerald’s decision to dismiss and rule in favor of Swift seems justified. The lyrical phrase in question seems more commonplace than other lyrical phrases that have been used by later artists, such as Dire Straits’ “money is for nothing and the chicks are for free”[11] or Georgia Satellites’ “don’t want no hugging, no kissing until I get a wedding ring.”[12] Regardless, short phrases are not usually protected by copyright protection especially ones that convey an “idea typically expressed in a limited number of stereotyped fashions.”[13] Although Fitzgerald mentioned that there are exceptions to the rule, which depend on the degree of creativity of the short phrase, he ruled that the short phrase was not sufficiently creative to warrant protection.[14]

Additionally, the assertions that players play and haters hate can be considered as “facts of the world” which are not only unoriginal, but are also unprotected by copyright according to the Supreme Court in Feist.[15] Although, combinations of unprotected elements, can protected by copyright, that is only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.[16] Judge Fitzgerald further stated that “combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”[17]

Despite the dismissal, Fitzgerald did however “shake off” Swift’s request for $75,000 in covering her attorney’s fees.[18] “Although the court disagreed with plaintiffs, their litigation position was neither frivolous nor objectively unreasonable,” Judge Fitzgerald wrote. “The purposes of the Copyright Act – namely, encouraging and rewarding creative endeavors – would not be well-served by a fee award.”[19] Fitzgerald also stated that if he were faced with the choice of awarding fees to Swift’s lawyers or lawyers for the 3LW songwriters, he would give the money to the 3LW team “without hesitation.”[20] “There are very few recording artists, if any, who have a greater interest than Ms. Swift in a robust regime of copyright law,” Judge Fitzgerald wrote. “Be careful what you wish for.”[21]

Unfortunately, this may not be the only copyright lawsuit in 2018 regarding the originality and banality of lyrical phrases. Just in March, Michael May (who performs as Flourgon) filed a $300 million lawsuit against popstar Miley Cyrus, because the lyrical phrase used in “We Can’t Stop” infringed upon his reggae hit “We Run Things.”[22] But, in light of Fitzgerald’s warning to Swift, it seems inevitable as to how may more of these sorts of infringement cases there will be by the end of this decade even.

[1] J.D. Expected (2019).

[2] Braham v. Sony/ATV Music Publ’g, 2015 WL 7074571 at 1–2.

[3] Id. at 8–14; see also Michelle Fabio, Taylor Swift Shakes Off Another Copyright Infringement Suit Over Lyrics, Forbes (Feb. 15, 2018), https://www.forbes.com/sites/michellefabio/2018/02/15/taylor-swift-shakes-off-another-copyright-infringement-suit-over-lyrics/#30aa85d43212.

[4] Braham, 2015 WL 7074571 at 14.

[5] Order Re: Defendants’ Motion to Dismiss for Failure to State a Claim and Motion to Strike at 1–2, Hall v. Swift, No. CV 17-6882 (C.D. Cal. Feb. 13, 2018).

[6] Judgment Upon Dismissal with Prejudice at 1–2, Hall v. Swift, No. CV 17-6882 (C.D. Cal. Mar. 2, 2018).

[7] Taylor Swift Gets Copyright Lawsuit Over ‘Shake It Off’ Thrown Out, CNBC (Feb. 14, 2018, 6:23 AM ET), https://www.cnbc.com/2018/02/14/taylor-swift-shakes-off-copyright-lawsuit-over-hit-song.html.

[8] 17 U.S.C. § 102(a). See Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003).

[9] Motion to Dismiss, supra note 5, at 11; 1 Nimmer on Copyright § 2.05[B] (2017).

[10] Motion to Dismiss, supra note 5, at 4–5, 11.

[11] Compare Dire Straits, Money For Nothing (Warner Bros. Records 1985) with Puddle of Mudd, Famous (Interscope 2007).

[12] See Ian Cohen, Review: Queens of the Stone Age’s Weighty Villains Is About Josh Homme, Not Mark Ronson, SPIN (Aug. 25, 2017), https://www.spin.com/2017/08/queens-of-the-stone-age-villains-review/. Compare The Georgia Satellites, Keep Your Hands to Yourself (Elektra 1986) with Queens of the Stone Age, Un-Reborn Again (Matador 2017).

[13] Motion to Dismiss, supra note 5, at 11–12; Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (holding that the following phrases, among others, that defendant copied were not subject to protection: “river wound its way between muddy banks crawling with alligators,” “hordes of gold seekers,” “shanties and corrugated [iron/steel] shacks … were crowded together,” and “beach was strewn with boxes, bales”).

[14] Motion to Dismiss, supra note 5, at 12.

[15] See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347–48 (1991).

[16] Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).

[17] Motion to Dismiss, supra note 5, at 15; Fabio, supra note 3.

[18] Alison Frankel, Judge Warns Copyright Playas Not to Be Haters in TaySwift Fee Awards Battle, Reuters (Apr. 17, 2018, 3:24 PM), https://www.reuters.com/article/us-otc-taytay/judge-warns-copyright-playas-not-to-be-haters-in-tayswift-fee-awards-battle-idUSKBN1HO30I.

[19] Id.

[20] Id.

[21] Id. See also Ephrat Livni, Taylor Swift Gets a Win and a Warning From Judge In “Shake It Off” Copyright Case, Quartz (Apr. 24, 2018), https://qz.com/1260031/taylor-swift-gets-a-win-and-a-warning-from-judge-in-shake-it-off-copyright-case/ (“Fitzgerald reminded Swift, the pop star could benefit from this view of intellectual property in the future, should she file suits similar to the one she just fought.”).

[22] Jill Disis, Songwriter Says Miley Cyrus Can’t Stop, Won’t Stop Ripping Off His Lyrics, CNN (Mar. 14, 2018, 2:33 PM ET), http://money.cnn.com/2018/03/14/media/miley-cyrus-song-copyright-lawsuit/index.html (The lyrical phrase in question is this lawsuit is “We run things. Things don’t run we.”).

*Featured image by Eva Rinaldi, licensed under CC BY-SA 2.0