Taylor Swift’s lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection.
It is all too common to hear people decry the current poor state of pop music in the United States, but on February 13th, a federal district court judge in Los Angeles, California added some stinging judicial commentary to the artistry of one of today’s top artists. So uncreative did Judge Michael Fitzgerald find Taylor Swift’s 2014 hit Shake It Off, he dismissed a copyright infringement case filed against her. In his opinion Judge Michael Fitzgerald explained the allegedly infringing lyrics used by Swift lacked even the modest level of creativity required for copyright protection.
“The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection,” Fitzergald wrote. “Accordingly, if there was copying, it was only of unprotected elements…”
The case stems back to a complaint for copyright infringement filed last September against Swift and music production companies connected to the Shake It Off recording. The suit was filed by songwriters Sean Hall, doing business as Gimme Some Hot Sauce Music, and Nathan Butler, doing business as Faith Force Music. Hall and Butler alleged that lyrics in Swift’s Shake It Off infringed upon their copyrighted lyrics found in Playas Gon’ Play, a song co-authored by Hall and Butler and recorded in 2001 by the American girl group 3LW; the song peaked at No. 81 on Billboard’s Hot 100 chart and received airplay on the MTV video countdown show TRL.
As the plaintiffs noted:
“‘Playas Gon’ Play’ includes the lyrical phrase “Playas, they gonna play / And haters, they gonna hate.” The combination of playas/players playing along with hatas/haters hating may seem like common parlance today, however, in 2001 it was completely original and unique. Indeed, the combination had not been used in popular culture prior to Plaintiffs’ original use.”
Plaintiffs Hall and Butler argued that, although other artists have used terms such as “playa hater” or “playa haters hate,” it was the plaintiffs’ own originality which allowed them to craft the lyrics used in Playas Gon’ Play. Plaintiffs noted that the linguistic sequence found in those lyrics are repeated in other lyrical phrases such as “Ballers, they gonna ball,” and “Shot callers, they gonna call”:
“In all, ‘Playas Gon’ Play’ prominently features a sequence of four peoples (playas, haters, callers, and ballers) who engage in four activities (playing, hating, calling, and balling). Plaintiffs were the first to put such a sequence together using the terms playas and haters, and prior to Defendants’ use at issue herein, the combination had not since been used in popular music.”
With Shake It Off, Swift was charged with copying these allegedly unique components by featuring the lyrical phrase “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.” Plaintiffs argued that the allegedly infringing material accounted for about 20 percent of the entire track, noting that similar lyrical sequences involving “heartbreakers” and “fakers” follow in the song as well.
In January, defendants Swift et. al. filed a motion to dismiss for failure to state a claim. The defendants argued that copyright does not protect the short phrases identified by the plaintiffs in their infringement allegations. Other arguments for failure to state a claim include the merging of unprotected ideas with the lyrics which rendered those words unprotectable, and the use of public domain elements like “players playing and haters hating” which are not copyrightable.
Although the creativity and originality necessary for copyright protection is exceedingly modest, U.S. District Judge Michael Fitzgerald’s February order granting Swift’s motion to dismiss noted that the phrases identified by the plaintiffs lacked originality and if there was any copying it was only of unprotected elements.
The plaintiffs only alleged infringement based on lyrics and not other musical elements and so Judge Fitzgerald found that the court could decide this issue without the use of an expert opinion or a jury. The court also accepted subject matter filed in a request for judicial notice by Swift, which showed the use of the alleged phrases by other artists going back decades; for example, Fleetwood Mac’s 1977 song Dreams included the lyrics: “Players only love you when they’re playing.” Further, Player was the name of a 1970s soft rock band, and Playa was the name of a 1990s R&B group.
“The concept of actors acting in accordance with their essential nature is not at all creative; it is banal,” Fitzgerald worte. “In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases ‘playas … gonna play’ or ‘haters … gonna hate,’ standing on their own, no more creative than ‘runners gonna run,’ ‘drummers gonna drum,’ or ‘swimmers gonna swim.’”
Judge Fitzgerald’s order added that the court will give the plaintiffs one opportunity to amend their claims “out of an abundance of caution” and “forbearance” in case there were additional musical elements in Swift’s Shake It Off that could merit a claim of infringement. However, Judge Fitzgerald noted that no distinctive musical elements seemed to have been copied after listening to both songs.
The order also noted that the most efficient course for the plaintiffs would be to consent to the judgment “so that they may pursue an appeal if they believe that is appropriate.”