Judge Finds Taylor Swift Lyrics Lack Originality and Creativity

By Gene Quinn & Steve Brachmann
February 23, 2018

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.”

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Gene Quinn

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 63 Comments comments. Join the discussion.

  1. Stephen Zweig February 23, 2018 11:24 am

    Misleading headline, since it implies that the entire song lyrics lack originality and creativity. In reality, it was just short phrases within the lyrics.

  2. Dan February 23, 2018 2:35 pm

    The title of your article — and some of its content — is grossly misleading.

    The judge did not assess the copyrightability of the allegedly infringing Taylor Swift lyrics — it assessed the plaintiff’s lyrics. Swift never asserted the similar phrases she used in her song were copyrightable.

    So … you’re factually wrong to assert: “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.”

    Your very next sentence corrects the error: “’The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection, Fitzergald wrote.”

    Swift’s lyrics, as a whole, are copyrightable. So why assualt her reputation by proclaiming that a portion are not copyrightable? All lyrics contain short phrases that are not copyrightable. The judge’s blunt assessment was directed at the PLAINTIFF’s silly assertion that a portion of its song’s lyrics was copyrightable and infringed. But putting that in your headline would not have eye-catching.

  3. Anon February 23, 2018 4:08 pm

    I agree with Dan – the title is misleading and verges on “clickbait.”

    You guys don’t need to do that.

  4. Kevin Rieffel February 23, 2018 4:19 pm

    I’m not one to advocate bench fines, but it’s just bad policy for people in music-based law–an industry clearly in turmoil with copyrights via sampling, DJ remixes, YouTube performances, etc.–to allow filing claims regarding simplistic, ubiquitous lyrics.

  5. Shannon Smith February 23, 2018 4:30 pm

    I don’t think you interpreted this correctly. The infringed lyrics would have been the lyrics in the song written by the people suing Taylor Swift. Therefore, it is those lyrics that “lacked even the modest level of creativity required for copyright protection”. I think you need to re-read the finding.

  6. Gene Quinn February 23, 2018 4:42 pm

    Dan, Anon, Shannon-

    The title is perfectly accurate. If you stop and think about it for even half a minute before you criticize you would notice that Taylor Swift’s lyrics are nearly identical to the lyrics that she allegedly copied. If the lyrics she allegedly copied were short phrases that lacked a modicum of creativity and originality then that also necessarily means that Taylor Swift’s lyrics lacked a modicum of creativity and originality. You can’t have it any other way.

    The lyrics she was alleged to have copied included: “Playas, they gonna play / And haters, they gonna hate.”

    Taylor Swift’s lyrics were: Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”

    IF the first lack originality and creativity the use of the word “play” four additional times and the use of the word “hate” four additional times would not suddenly turn something that is unoriginal and not creative into something that is original and is creative. That being the case, it is perfectly accurate to say that Taylor Swift’s lyrics are not creative and they lack originality.

    Furthermore, if “Playas, they gonna play / And haters, they gonna hate” is “banal,” that must necessarily mean that Taylor Swift’s lyrics are “banal” as well. You can’t have it any other way.

    What is interesting is the defendant argued that what Taylor Swift allegedly took lacked creativity and originality. So that also must necessarily mean that the lyrics are uncopyrightable.

  7. Dan February 23, 2018 4:53 pm

    Gene, of course the portion of Swift’s lyrics alleged to be infringing are uncopyrightable because, as the court held, the plaintiff’s analogous portion are uncopyrightable. The difference is that Swift never asserted her’s were: or any other subsection of the lyrics of her song. In order to be accurate your article’s title requires the reader to take an inferential leap and it implies that Swift’s lyrics — as a whole — are uncreative and banal. That’s wrong. It’s an unnecessary cheap shot far beneath your usual quality of work.

    Moreover, you wrote in the body of the work: “Taylor Swift’s ‘lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection.'” as if quoting the court. That, and the other quote I cited previously, are factually wrong.

  8. Anon February 23, 2018 4:58 pm

    Gene – subsection (snippet or single phrase) versus whole song copyright.

    This is not even a close call.

  9. Gene Quinn February 23, 2018 5:02 pm

    Anon-

    Sorry you don’t think it is a close call. We will have to agree to disagree. Clearly, if the original lyrics lack originality then that has to mean that her lyrics lack originally.

    -Gene

  10. Gene Quinn February 23, 2018 5:11 pm

    Dan-

    I’ve removed the quotes from the call-out before the story. But again, if the Judge said that about the nearly identical lyrics that she copied then that has to necessarily mean that her lyrics similarly lack creativity and originality.

    As for the title, which seems to be what is giving everyone problems, I’m sorry you feel mislead. If you stopped and thought about it though you’d probably realize that a title can’t be a paragraph. It needs to identify the subject matter. Sure, Taylor Swift did not assert a copyright, but to defend her attorneys necessarily (and in fact did) argue that the short phrases she took are not copyrightable. That has to mean that her lyrics, which are pretty much the entirety of her song over and over and over again, aren’t copyrightable either.

    I’d understand the criticism if Taylor Swift’s lyrics were original and creative but the Hall and Butler lyrics were not. Of course, that can’t be true. If the Hall and Butler lyrics aren’t copyrightable that means Swift’s aren’t either. So it seems you would have preferred the entire story to be told in the title of the article, which obviously can’t happen.

    If you are turned off then fine I guess. I suppose you came to the article thinking Taylor Swift asserted the copyright, which the article clearly explains isn’t the case right in the first paragraph (and throughout). But if you have such an issue with the title, like you say you do, ask yourself this: Are the Taylor Swift lyrics in question copyrightable? Of course not. So that being the case the title seems perfectly accurate. That you thought you were going to read something slightly different doesn’t change the fact that the headline is accurate.

  11. Dan February 23, 2018 5:20 pm

    How about: “Judge Finds Taylor Swift Can Freely Use Noncopyrightable Lyrics.” See the difference?

  12. Gene Quinn February 23, 2018 5:31 pm

    Dan-

    I see the difference, but the title is not wrong. Taylor Swift’s lyrics are not creative and they are unoriginal, period. You can’t say that they are and you have to agree with the title. Frankly, that is the story. The story here is that her defense team argued that what she took (which is nearly identical and just keeps repeating through almost the entire song) are not original. So to prevail in this case they had to call into question her own copyright. So they won, sort of. But now if someone wants to take her lyrics they really can, at least if this decision holds.

    -Gene

  13. John February 23, 2018 5:59 pm

    Wow, what a misleading headline. Maybe Steve & Gene should do a little research before they write an article like this. But I’m thinking they just wanted the clicks so the facts don’t really matter.

  14. Bemused February 23, 2018 6:04 pm

    I think Taylor Swift is hot.

    [Sorry. I know that was off-topic but it was a stream of consciousness thing…]

  15. Gene Quinn February 23, 2018 6:15 pm

    John-

    What in the article is wrong? What in the title is wrong? Simple. The answer to both is nothing. That you may have preferred the title to be something different doesn’t make the title inaccurate.

  16. Dan February 23, 2018 6:28 pm

    Gene, we’ll have to agree to disagree.

    Swift certainly did not argue her song lyrics as a whole were not copyrightable. In fact, she asserted her song and the plaintiff’s song were “dramatically different works.” Her lyrics, reproduced below, are without question copyrightable.

    Plaintiff claimed the chorus of Swift’s song infringed the copyright in the chorus of his song:
    “Playas, they gonna play
    And haters, they gonna hate.
    Ballers, they gonna ball.
    Shot callers they gonna call.”

    The judge held those four lines were not copyrightable. And yet you wrote an article entitled: “Judge Finds Taylor Swift Lyrics Lack Originality and Creativity.” That’s very, very wrong.

    Maybe you should listen to her song [ https://www.youtube.com/watch?v=zIOVMHMNfJ4 ]

    Swift’s lyrics:
    [Verse 1]
    I stay out too late
    Got nothing in my brain
    That’s what people say, mmm, mmm
    That’s what people say, mmm, mmm
    I go on too many dates
    But I can’t make them stay
    At least that’s what people say, mmm, mmm
    That’s what people say, mmm, mmm

    [Pre-Chorus 1]
    But I keep cruisin’
    Can’t stop, won’t stop movin’
    It’s like I got this music in my mind
    Saying it’s gonna be alright

    [Chorus]
    ‘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
    I shake it off, I 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
    I shake it off, I shake it off

    [Verse 2]
    I never miss a beat
    I’m lightning on my feet
    And that’s what they don’t see, mmm, mmm
    That’s what they don’t see, mmm, mmm
    I’m dancing on my own (dancing on my own)
    I make the moves up as I go (moves up as I go)
    And that’s what they don’t know, mmm, mmm
    That’s what they don’t know, mmm, mmm

    [Pre-Chorus 2]
    But I keep cruisin’
    Can’t stop, won’t stop groovin’
    It’s like I got this music in my mind
    Saying it’s gonna be alright

    [Chorus] Again.

    [Post-Chorus]
    Shake it off, I shake it off
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off

    [Interlude]
    Hey, hey, hey
    Just think while you’ve been getting down and out about the liars
    And dirty, dirty cheats of the world you could’ve been getting down to this sick beat

    [Bridge]
    My ex-man brought his new girlfriend
    She’s like, “Oh my God”, but I’m just gonna shake
    And to the fella over there with the hella good hair
    Won’t you come on over, baby, we can shake, shake, shake
    Yeah, oh, oh, oh, oh

    [Chorus] Again.

    [Post-Chorus]
    Shake it off, I shake it off
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off
    Shake it off, I shake it off
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off (yeah!)
    Shake it off, I shake it off
    I, I, I shake it off, I shake it off (you got to)
    I, I, I shake it off, I shake it off
    I, I, I shake it off, I shake it off

  17. spaceman music February 23, 2018 6:39 pm

    Its all just non music and won’t be around in 10 years. People will forget all of it.

  18. spaceman music February 23, 2018 6:41 pm

    Max Martin writes most her songs anyway so no big deal. Max Martin writes songs for all the pop singers today.

  19. Anon February 23, 2018 6:44 pm

    Dan @ 11:

    How about “Any songwriter may use snippets and small phrases to craft a fully copyrightable song.”

    Coupled with:

    It remains true that copyright covers only portions of an item, and may not cover all elements of an item.

    Copyright is an interesting animal when compared to patents: different in multiple dimensions, including but not limited to: duration and depth.

    The duration part is fairly obvious, but the depth dimension (scope) has to do with many factors, and may impact and be impacted by things such as Fair Use, independent creation (and each obtaining copyright), coverage of the portions but not the whole, and on and on. Think for example, of the “thinness” in a copyright of a phone book.

    Perhaps my biggest beef with a stance unwilling to see the nuance and the differences that I think that both of us see is the opportunity lost of a lesson in the differences between copyright and other forms of intellectual property protection. It is truly a mistake to attempt to draw the conclusion that an entire song lacks copyright protection when what is the true takeaway is that protection inures only to certain aspects of an item that can be protected – and the short, individual snippets, in and of themselves – fall into the familiar category of something that cannot be protected. See FAQ at https://www.copyright.gov/help/faq/faq-protect.html or this link (found on the Copyright web site): https://www.copyright.gov/rulings-filings/briefs/new-york-mercantile-exch-inc-v-intercontinentalexchange-inc-497-f-3d-109-2d-cir-2007.pdf or Circular 33: https://www.copyright.gov/circs/circ33.pdf note that this circular differentiates different ASPECTS of a work, and it is the aspect of a work that garners different forms of Intellectual Property protection.

  20. Anon February 23, 2018 6:50 pm

    Gene,

    Consider this line from the story: “So uncreative did Judge Michael Fitzgerald find Taylor Swift’s 2014 hit Shake It Off, he dismissed a copyright infringement case filed against her

    Half truths are sometimes more pernicious than total falsehoods.

    Consider: while it is certainly true that a copyright infringement case was dismissed, the hit – as a full song – was NOT what the judge labeled as “so lacking.”

  21. Gene Quinn February 23, 2018 7:44 pm

    Dan @16-

    You say: “The judge held those four lines were not copyrightable. And yet you wrote an article entitled: “Judge Finds Taylor Swift Lyrics Lack Originality and Creativity.” That’s very, very wrong.”

    You are incorrect, period. You admit that those four lines are not copyrightable, and presumably you’d have to admit that those lines appear in Taylor Swift’s song, just with her repeating “play” an extra 4 times and “hate” an extra 4 times. So that necessarily means that those lyrics in Taylor Swift’s song lack originality and creativity.

    You can choose to ignore the obvious and continue to argue your point, but at some point we really should agree to disagree. Clearly the article explains exactly what happened. You don’t like the title, and I think the title is perfectly fine. What is clear, and becomes ever more clear when you copy and past Swift’s lyrics here is just how unoriginal the entire song is. She says the same word over and over and over and over. All of these lyrics are short phrases that are not copyrightable.

    And let’s be perfectly honest… the Judge’s decision here does not stand for the proposition that Swift’s song is original. The Judge’s ruling here stands for the proposition that the lyrics Swift copied (i.e., Swift’s lyrics) are not copyrightable because they are not creative and they are unoriginal. That is true whether you want to admit it or not.

  22. Gene Quinn February 23, 2018 7:53 pm

    Anon @20-

    You say: “Consider: while it is certainly true that a copyright infringement case was dismissed, the hit – as a full song – was NOT what the judge labeled as “so lacking.””

    And the article makes that clear.

    And let’s be honest for one minute. You and Dan are having a problem with the fact that I used a title that would lead to people being interested enough to read. A title that… by the way… is accurate. Instead you suggest a title that would lead to no one reading the article at all, and one that doesn’t even use Taylor Swift’s name.

    I’ll say it again… the story here is that this judgment is a Pyrrhic victory for Swift. Much of her song is just short phrases over and over again, including the ones that she copied. So the Judge ruled those short phrases (i.e., song lyrics) are unoriginal and not creative, which means they can’t be protected and anyone can copy them. That is the story here. Her lyrics (at least the ones she copied) are uncreative and not original.

    Furthermore, what the Judge decided is correct with respect to haters hating and players playing being short phrases that are not copyrightable, then “Shake it off” similarly can’t be copyrighted either, and over half the song is her saying “shake it off.” So between the “shake it off” chorus, and haters hating and players playing and fakers faking (which the Judge says is the type of thing you can’t copyright either) the vast majority of her song is uncreative and unoriginal.

  23. Anon February 23, 2018 8:08 pm

    Gene,

    I harbor no such feelings of “having a problem… that would lead people being interested enough to read

    That should be quite evident not only from the disagreement itself, not only from the facts that I contrast, but also from the detailed reasoning in my posts which I combine with additional source material FOR having that disagreement.

    I have no problem at all being honest – for one minute, for one hour, for all my time here. ALL of my posts are made with honesty and without guile (even my posts made with biting sarcasm are clearly so and I post only with honesty).

    There is no doubt that the vast majority of her song is uncreative and unoriginal. It simply does not carry that her song is not copyrighted, or copyrightable.

    There is a difference. The source material that I provided – I provided to help show that difference.

  24. step back February 23, 2018 9:25 pm

    If we gonna be into rappa lyricism, then here be my sub-modicum of creative contribution:

    Judges gonna be hate-monga’s of creativity;
    Cause it threaten superior mentality of da judiciary;
    Ya’ll say Hay Ho Hay Ho;
    Ya’ll say Alice/Mayo say so;
    Ya’ll say Swift girl know so.

    Hay Ho Hay Ho;
    Hay Ho Hay Ho;

    😉

  25. Anon February 23, 2018 9:41 pm

    Ugh – don’t quit your day job, step back.

    😉

  26. A reader February 23, 2018 10:51 pm

    The only thing worse than the clickbait-y headline are the mental gymnastics used to justify it.

    Gene – you’re better than this.

  27. Judge Rich's Ghost February 24, 2018 6:33 am

    This is not the first time Gene and his write colleague have used a clickbait title. And then Gene never backs down, much like Trump. Oh well.

    I agree with the other commenters. The title is completely misleading. The reader is expecting a judicial decision in which the copyright to Taylor Swift’s song is struck down. Not so.

  28. Paul Morgan February 24, 2018 9:42 am

    Surprised the famous old Cole Porter song was not cited for those phrases.

  29. Bemused February 24, 2018 10:42 am

    C’mon folks. Ease up a bit. Even if you felt the title of the article wasn’t exactly on point or that it was misleading, it wasn’t a waste of the 1 1/2 min of your time to read about this copyright case. I could care less about copyright law and I read the article and found it informative.

    The salient point I’m trying to make here is that the issue of whether the title of the article is accurate or not isn’t worth the ink and time that’s been spent debating this rather trivial point.

    And, in my opinion, to write to Gene that he’s “better than this” is a cheap shot at the man (yeah, I’m looking at you “A reader” @26).

  30. Tony M. February 24, 2018 11:00 am

    Gene…. the fact you find it necessary to vigorously and passionately defend your stance on a misleading title says alot about your lack of acceptance with an open mind and your rigorous hatred toward Swift. Stop beating a dead horse. Your title is misleading and we don’t have not even a “half a minute” to ponder your title or any article title for that matters before clicking. We take a mere second to do that and move along. But in the end you emerge victorious because you got us to read your pathetic story lured by a misleading title which is what you wanted in the first place.

  31. Gene Quinn February 24, 2018 12:03 pm

    Tony & Ghost & and everyone else who thinks the title is misleading…

    Everyone has the right to be wrong, and you are all wrong. I would LOVE the opportunity to go in front of Judge Fitzgerald and argue against your point and to support mine. If we are honest we all know what would happen. The Judge would rip into you with disdain. Clearly, if he ruled that the Hall/Butler lyrics were unoriginal and not creative then when Taylor Swift uses the SAME lyrics they must also be unoriginal and not creative. To say otherwise is flat wrong and each of you challenging me who has spent even a second in a courtroom knows that.

    Further, over half of this particular Taylor Swift song is her just repeating the words “shake it off.” If short phrases are not copyrightable (which we all know they are not) and the use of short phrases in a song do not magically change the lyrics into something that become copyrightable when sung, that means that the vast majority of this particular Taylor Swift song is not copyrightable — at least in so far as the lyrics are concerned. To be uncopyrightable that means that the lyrics need to lack originality. So to all you Taylor Swift lovers out there who don’t like this article so much, you are wrong. It is perfectly reasonable and accurate (at a minimum by necessary implication) to say that this ruling by Judge Fitzgerald stands for the proposition that the lyrics in Swift’s song are uncreative and not original.

    I REALLY wish we could have the chance to argue this in court. Anyone who is honest with themselves knows I would win the argument. How any of you can think that the Hall/Butler lyrics are unoriginal and not creative but somehow Swift’s lyrics are original and creative (thereby making the title wrong) baffles me. And before you protest that you aren’t saying that Swift’s lyrics are original and creative ask yourself this: Then what exactly is wrong with the title?

    If you want to stop reading then stop reading. That’s fine. Up to you. I hope that isn’t the case. But the title is absolutely fair given what actually happened and what this ruling actually stands for.

    What is bothering you all is that the title wasn’t vanilla to the point where no one would want to read the article. The title is the single most important part of the article in order to attract readers, period. You could write a Pulitzer prize winning article and with a bad title no one would read it. Those are the facts and if that bothers you I’m sorry. I’d be on board with the criticism, and be willing to allow you all to call this clickbait if it were actually clickbait. But to be clickbait it would have to be wrong, and I’m sorry but this decision simply does not stand for the proposition that Swift’s lyrics are original and uncreative. At an absolute minimum, by necessary implication this decisions stands for the exact opposite, which makes the title perfectly reasonable.

  32. Gene Quinn February 24, 2018 12:12 pm

    Two additional thoughts…

    Don’t make too much out of me arguing and defending. I’m doing that here only because some of our regulars have an issue with the title. And while I seriously disagree, I’m not angry or upset (really). I’m trying to explain to you why I did what I did with the title because as regulars I think you deserve that and because I actually do take your criticism seriously. I don’t always agree and won’t always change, but it is always very seriously considered — and I thank you for that check and balance.

    Second, blame me not Steve. He wrote this article and I significantly edited it to the point where I put my name on the article (something I don’t always do as you probably realize). His original title was: “Copyright Infringement Case Against Taylor Swift Dismissed After Court Finds That Lyrics Lack Originality.” I suspect that title would have been far more palatable to those criticizing what actually ran. So it was me alone that made the decision to change the title, and re-write the first paragraph, and add other commentary throughout. I left him as the lead author because he did the most work. I will change that to me being lead so as to be clear that the ruckus here was caused by my writing, not his.

    Finally, while I do value your criticism, I have to be honest and tell you this was intentional and nothing here has changed my mind. Whether this article winds up being extremely popular or not, titles do need to attract an audience. That is the function of the title. I did take Dan’s criticism (which I thought was appropriate) into consideration and made one change (see comment 7 and 10). He was right on that, I was wrong there.

  33. Anon February 24, 2018 12:17 pm

    It is perfectly reasonable and accurate (at a minimum by necessary implication) to say that this ruling by Judge Fitzgerald stands for the proposition that the lyrics in Swift’s song are uncreative and not original.

    It is also perfectly – legally – wrong.

    See the source materials I provided and my explanation thereof.

    You are conflating elements with an entire song.

    And please, I already addressed the fallacy of “what is really bothering all of you.” repeating that will not make it any less incorrect.

    And personally, I find that being incorrect in this instance (and opposite of what Bemused notes at post 29) to have generated worthy explication.

    My explication.

    I (not so humbly) suggest that readers simply accept that Gene will not admit his error, read my post and the source materials provided, understand for themselves why Gene remains in error, and learn from this opportunity. Come a little further, Bemused.

    I will borrow a short phrase from the Shawshank Redemption and then step off of my soapbox:

    Dear Red, If you’re reading this, you’ve gotten out. And if you’ve come this far, maybe you’re willing to come a little further. You remember the name of the town, don’t you? I could use a good man to help me get my project on wheels. I’ll keep an eye out for you and the chessboard ready. Remember, Red. Hope is a good thing, maybe the best of things, and no good thing ever dies. I will be hoping that this letter finds you, and finds you well. Your friend, Andy.

  34. Anon February 24, 2018 12:20 pm

    (post at 33 crossed in transit with post at 32 – not quite humble pie Gene, but the olive branch is recognized)

  35. Dan February 24, 2018 12:38 pm

    The lyrics to Swift’s song “Shake It Off” are copyrightable — there is no rational legal argument otherwise. The chorus of that song, by itself, is not. Just as the chorus of many songs are not. That’s the end of the analysis.

    The title “Judge Finds Taylor Swift Lyrics Lack Originality and Creativity” is grossly misleading and unnecessarily snarky because it implies that all of the lyrics in her song are uncopyrightable. Which, again, is clearly wrong. The article’s title could apply to every song ever written if only a subset of their lyrics were evaluated for copyrightablility.

  36. Randall February 24, 2018 7:15 pm

    i’ve seen misleading titles before but this one takes the cake.

  37. Gene Quinn February 24, 2018 7:26 pm

    Randall-

    Just curious. Since you say this is the most misleading title you’ve ever seen, what proposition do you think the Judge’s decision stands for? Do you think this decision actually stands for the proposition that Taylor Swift’s lyrics are original and creative despite the fact that the same exact lyrics were found to be uncreative and not original?

  38. DaveR February 24, 2018 7:32 pm

    If you wanted to draw readers, all you had to do was mention Taylor Swift in your title line.

  39. Gene Quinn February 24, 2018 7:40 pm

    Dan @35-

    You say: “The lyrics to Swift’s song “Shake It Off” are copyrightable — there is no rational legal argument otherwise.”

    The one thing that we all ought to be able to agree on is that statement is objectively incorrect. The Judge ruled that the haters hating and the players playing (and therefore presumably the fakers faking) lyrics are NOT copyrightable. The Judge specifically ruled that those are short phrases that cannot be copyrighted because they lack originality and creativity. So we absolutely positively know at least that. So not all of the lyrics of the song are protectable. It is that simple.

    Taking one step further, “shake it off” is itself a short phrase, and indeed a phrase that takes up about 50% of the entire song lyrics. Shake it off is not something that can be protected. We ought to be able to agree on at leas that. And once we agree on that the inescapable conclusion is that the clear majority of the song lyrics are not protectable.

    Clearly, anyone could copy haters hating, players playing, fakers faking and “shake it off” because those are unprotectable elements. There really isn’t much left to the song.

    So you can continue to say the title is misleading, but deep down you have to know that it isn’t.

    You say: “The article’s title could apply to every song ever written if only a subset of their lyrics were evaluated for copyrightablility.”

    Again, that is false. Perhaps if you were more familiar with copyright law you’d be familiar with the George Harrison case where the use of only 7 notes was found to a copyright infringement because those notes were no where ever used together in sequence. That is why the plaintiffs argued that the players playing and haters hating hadn’t ever been used before in a song. If that had been true it would have benefited their case (although not likely been dispositive). The trouble was that it wasn’t true, as the court explains.

    So earlier you were upset that the titled talked about lyrics, and now you seem to be pivoting to realize that lyrics being uncopyrightable doesn’t actually mean the entire song has to be uncopyrightable. So it seems your problem with the title is not being particularly versed in the subject matter you are discussing.

    As you can see (and I realize you will never agree with for your own reasons) the vast majority of the lyrics of this song are unoriginal and not creative. And it really is as simple as the court said they weren’t original and were not creative when Hall and Butler wrote them, which absolutely with unequivocal certainty means the same lyrics written by Taylor Swift are likewise not creative and are unoriginal.

  40. Anon February 24, 2018 9:13 pm

    Gene – lyrics as a whole versus a snippet of the lyrics.

    It should be clear that THAT is what Dan is referring to.

  41. Dan February 24, 2018 9:14 pm

    Gene, I’ve already quoted Swift’s lyrics to her entire song. If you think they’re not, as a whole, copyrightable then I strongly suggest you review what you think you know about copyright law’s creativity requirement.

  42. Anon February 24, 2018 9:15 pm

    To draw a parallel outside of music, phone books have been found to be copyrightable.

    Phone books.

    Let’s look at what copyright means for such a work as a song (and not pieces or short snippets of part of the lyrics of the song). Let’s also note the P and D portions of what is going on – and who was asking for what.

  43. Tony February 25, 2018 6:24 am

    Don’t you think the title should read (Judge Finds Six Words in Taylor Swift Lyrics Lack Originality and Creativity)? And I would argue that although they might not be original, in the context of the song they are creative.

  44. Gareth February 25, 2018 11:20 am

    So if I understands Gene’ s explanation correctly., I can now take the entire lyrics that were printed above, sing them along to my own tune, and Taylor Swift won’t have the ability to sue me for anything as I won’t be in breach of copyright?

  45. Gene Quinn February 25, 2018 2:04 pm

    Gareth @44-

    And therein lies the problem you all are having with the article. You think the word “lyrics” is synonymous with “entire song.” Nothing I’ve written in the article or in the comments suggests the words you try to put in my mouth. Nice try.

    Where do you think I said someone can take “the entire lyrics”? Where does the word “entire” come from? Likely from your misunderstanding of the definition of “lyrics”.

  46. Gene Quinn February 25, 2018 2:05 pm

    Tony @43-

    You suggest a title that reads: “Judge Finds Six Words in Taylor Swift Lyrics Lack Originality and Creativity”

    What are those six words? They are lyrics to her song.

  47. Gene Quinn February 25, 2018 2:21 pm

    Tony @43…

    And for the record, it is much more than six words. Here is the part in question, which repeats 3 times:

    “Cause the players gonna play, play, play, play, play
    And the haters gonna hate, hate, hate, hate, hate, baby”

    Which comes out to 19 words, repeated 3 times, which equals 57 words.

    And when the Judge says players playing and haters hating is no more creative than swimmers swimming because that is what they do, that necessarily also means these words are also uncreative and not original:

    “Heartbreakers gonna break, break, break, break, break
    And the fakers gonna fake, fake, fake, fake, fake, baby”

    Which is another 17 words, repeated three times, which equals 51 words.

    Finally, although not specifically addressed, the Judge does correctly say that short phrases are not copyrightable, so “shake it off” or “I shake it off” can’t be original or creative either. After all, “shake it off” is a common expression, which would be readily understood to mean get over it. If anyone has played baseball, or even watched a Little League baseball game, when someone is hit by a pitch that is what is said. So under the same rationale it can’t be protectable and would be unoriginal and lack creativity.

    The song uses these lyrics:

    “Baby, I’m just gonna shake, shake, shake, shake, shake
    I shake it off, I shake it off”

    Another 17 words, repeated 6 times, which equals 102 words.

    The song also uses these lyrics at an interlude:

    “I, I shake it off, I shake it off
    I, I shake it off, I shake it off”

    Another 18 words, repeated 8 times, which equals 144 words.

    So at a minimum that means 354 words of this song are not original and are uncreative, which is well over half of the song.

    So your title really should be something like: “Judge’s Ruling Suggests 354 Words in Taylor Swift Song Lack Originality and Creativity”

    Or if you want to be 100% accurate, how about “Judge’s Ruling Finds 108 Words of Taylor Swift Song to Lack Originality and Creativity”

    Or even better: “Judge’s Ruling Finds 108 Words of Taylor Swift Song to Lack Originality and Creativity, While Necessarily Implying Another 246 Words Also Lack Originality and Creativity”

    Of course, when you actually break it all down and think about it for even a second it becomes apparently clear that “Judge Finds Taylor Swift Lyrics Lack Originality and Creativity” is both a fair and reasonable title.

  48. Roger Heath February 25, 2018 6:32 pm

    Title seemed clear and applicable to me. Go figure.

  49. Roger Heath February 25, 2018 6:43 pm

    “Substantially filled”, and – GO!

    (lol)

  50. Dan February 25, 2018 7:31 pm

    Gene, no word in your article is copyrightable. No sentence in your article is copyrightable. Cumulatively, however, the article is copyrightable because the particular combination of words and sentences you chose is original and creative. Your parsing of the Swift lyrics to determine whether any subset is copyrightable is analytically wrong — fundamentally. The court only did so in the case being discussed because the plaintiff asserted a copyright in a four sentence chorus subset of his song. The court rightfully held it was not copyrightable. But for you to apply that same analysis to Swift’s song subset after subset reveals that you don’t understand copyright law’s creativity and originality doctrines. Again, re-think what you think you know about copyright law. And stop the ad hominem attacks. They’re infantile and undermine your credibility.

  51. Roger Heath February 25, 2018 8:09 pm

    Here is a definitive analysis.

    if a + b = c, then c – a = b. Case closed.

    (No wonder lawyers are so damned expensive and nothing is ever simple.)

  52. Tony February 25, 2018 8:17 pm

    She was being sued over six words “players gonna play” and “haters gonna hate”, not 354 words.

  53. Anon February 25, 2018 8:56 pm

    Mr. Heath @ 51,

    In your case, you would get what you paid for.

  54. Kevin Rieffel February 26, 2018 10:51 am

    I’d like to consider an infringement suit of Swift’s “haters gonna hate, hate, hate, hate, hate, hate (6)” vs. “haters gonna hate, hate, hate, hate (4)” i.e., does the repetition and combination get it to that modicum of creativity?

  55. Gene Quinn February 26, 2018 12:53 pm

    Dan-

    You say: “Your parsing of the Swift lyrics to determine whether any subset is copyrightable is analytically wrong — fundamentally.”

    I’m not the one who did that. The Judge did that. He said that the haters hating and players playing (and presumably by necessary implication the fakers faking and heartbreakers breaking) lines are unprotectable because they lack even a modicum of creativity. So don’t say I’m the one separating the elements. I’m just the one writing the article explaining what happened and why the title is accurate.

    You say: “The court only did so in the case being discussed because the plaintiff asserted a copyright in a four sentence chorus subset of his song.”

    Correct. But if Judge Fitzgerald is the Judge on the next case where Taylor Swift’s lyrics are copied… the same lyrics about haters hating, players playing, fakers faking and heartbreakers breaking we know what he will rule. He will rule that those lyrics are free to be taken because they are not original and are uncreative, lacking the modicum of creativity required for copyright protection to attach.

    You say: “But for you to apply that same analysis to Swift’s song subset after subset reveals that you don’t understand copyright law’s creativity and originality doctrines.”

    You can believe that if you want, but I do understand copyright law. You are the one who seems to have the limited knowledge in this realm. You made several statements earlier that are simply inaccurate. And now you inexplicably seem to be saying that when Hall/Butler write the lyrics about players playing and haters hating they are not creative and unoriginal, but somehow when Taylor Swift copies the exact same lyrics her’s somehow becomes original and creative and protected from copying. That is utterly nonsensical.

    You say: “stop the ad hominem attacks.”

    Do you really understand what “ad hominem” means? It would seem you really don’t know what that means. It is not an ad hominem attack to tell you that you are wrong and explain why. An ad hominem attack is to attack the person and not their position. I’ve gone to great lengths to explain why your position is wrong and I have not called you names.

    For crying out loud, I’ve even offered to just agree to disagree. You are the one who keeps coming back again and again with an increasingly indefensible position.

    What you don’t want to accept is that the word “lyrics” does not mean “entire song.” It is as clear as can possibly be that a great many of the words in Taylor Swift’s song were determined to be unoriginal and not creative, and even not protectable, by Judge Fitzgerald. Those words cannot possibly be unoriginal and not creative when written by Hall/Butler and suddenly creative and original when copied by Taylor Swift. That is what you are saying and that is simply a nonsensical and indefensible argument.

    I’d really love to argue this against you in court. My guess is you wouldn’t take these positions in front of Judge Fitzgerald. Arguing to him that Taylor Swifts lyrics are original and creative after he has ruled the same lyrics to be not original and uncreative is the type of thing that should result in sanctions if someone actually had to pay money to defend against such allegations.

  56. Dan February 26, 2018 2:56 pm

    Gene, you have the right to post a click-bait headline, to be wrong in your legal analysis, and to be uncivil and arrogant in your discourse. All are disappointing.

  57. Joachim Martillo February 26, 2018 4:01 pm

    The creativity is found in the music video as a whole. I have generally found that the worst poetry takes itself too seriously. While Taylor Swift seems to have many flaws (I have a blindness on musical issues), in the video Swift seems to be amusing in her self-deprecation.

    In contrast, Hall and Butler’s music video seems only to shout out, “Don’t you hate us because we are such hotties” — a rather trite forgettable sentiment, which screenwriters would describe to be too much on the nose.

  58. Gene Quinn February 26, 2018 4:53 pm

    Dan-

    I’m really tired of your B.S. You are the one who has engaged in ad hominem attacks. You call me uncivil and arrogant. All I’ve done is explain why you are wrong. That is not an ad hominem attack, and it isn’t uncivil or arrogant. You are wrong, period. Why you refuse to at least acknowledge that Taylor Swift’s haters hating and players playing lyrics are uncreative and not original (at least per Judge Fitzgerald) continues to be a mystery. You have been so fast to aggressively jump on me, but you refuse to acknowledge the obvious. If the lyrics were uncreative and not original when Hall/Butler wrote them they do not magically somehow become creative and original when Taylor Swift copies them. It really is just that simple.

    As for you saying I’m wrong on my legal analysis, you are welcome to that view if you must. It would be useful, however, to identify what I’ve reported about what Judge Fitzgerald ruled versus my own legal analysis about whether he is correct. As for what I’ve said about the George Harrison case, that was 100% accurate (and you didn’t dispute it) so too has been my other analysis.

    You have been mistaken from the beginning when you say that taking small parts of all songs would result in the same ruling. I suggest you take a look at Harper & Rowe v. Nation Enterprises, 471 U.S. 539, which stands for the proposition that even a very small portion of an overall work can result in copyright infringement and not be fair use.

    So fool yourself if you want, but I know what I’m talking about.

    I’ll finally point out that I offered the opportunity to agree to disagree, but you kept pushing to get the final word. So call me uncivil and arrogant if you want, but it is you that have acted petulant. Adults can agree to disagree. There are always at least two sides to every legal argument (if not more). I know for sure based on everything I know about copyright law in the music industry that I would prevail over all of your arguments if we ever had the chance. Still, I was willing to virtually shake hands and walk away. You persisted and somehow that makes me the arrogant one.

    It always amazes me that people who say they are right and I am wrong conclude I’m the arrogant one. Talk about the height of arrogance! Chastising me for not backing down when you won’t even admit the obvious, and calling me arrogant. That is rich!

  59. Night Writer February 27, 2018 8:19 am

    The judge has disassembled the lyrics. But, I think there is a long history of that particularly when the asserted claim is against a phrase or two of the song.

    The threshold question is whether it was OK to disassemble the song. I’d say yes based on the complaint. Maybe it was a poorly written complain.

  60. Anon March 1, 2018 9:55 am

    As the threads starts to set “below the fold,” I would toss one more comment into the pile here.

    Copyright has a certain sense of a vector quality.

    By this, I mean that the analysis is not the same from one location, direction looking towards a second location than it is from a second location, a second direction looking back to a first location.

    That is part of what I meant above when I stated that the P (Plaintiff) and the D (Defendant) had to be taken notice of.

    For someone charging someone else with copyright infringement, and the first location is merely a short phrase, and the second location is a full song, that direction settles on the analysis that the item (the first location) does not inure copyright protection to begin with.

    It is an altogether different analysis for the second direction.

    In a second direction, starting with a full song, and then accusing someone of copyright infringement of a part of that full song (the second direction), a concept comes into play of “substantiality.”

    Substantiality is a per fact situation call.

    And while it is not a per se “quantity” analysis, in some cases, quite a bit needs to be copied in order to reach substantiality an din other cases a mere key phrase may suffice.

    I need not call out Gene as being wrong in his attempted analysis for the objective realization that this difference in direction is in fact a critical element of copyright law.

    The world still turns.

  61. Sus Pence April 22, 2018 10:30 pm

    You know what you’re talking about because YOU say you do? There are 60 (now 61) comments in this thread, the majority of which are either multiple learned individuals telling you that you are WRONG or your own weak, self-serving defenses. You know goddamn well you phrased the title the way you did just to bait readers into clicking the link. The Court DID NOT analyze this case the way you misrepresent it had. I’m now wondering whether Ms. Swift should maybe look into a cause of action for defamation… This is my first (and last) visit to this site if I can avoid your pop-culture clickbait BS in the future.

    Oh, and way to go getting into a flame war in the comments section. Really, very professional…

  62. Gene Quinn April 23, 2018 10:24 am

    Sus Pence-

    I’m sorry you feel so strongly. Obviously, when Taylor Swift copies lyrics that are found to be unoriginal and to lack creativity that necessarily means that her copied lyrics lack creativity and are unoriginal. There can be no other legitimate or logical conclusion.

    I know many on this thread would have preferred a paragraph or two for a title, but that isn’t how things work. The title is perfectly fine and accurate. And unlike you— with a fake name and fake e-mail— I’d have no problem explaining that to anyone face to face.

    And for all the professionals who disagree with me… they are wrong. Everyone is entitled to be wrong, but the fact many claim Taylor Swift’s lyrics are original doesn’t make it so.

  63. Nelson Kane May 24, 2018 2:58 pm

    This reminds me of what a rock critic for “Rolling Stone Magazine” wrote over 40 years ago about a piano player-singer named Barry Manilow. I do not remember exactly what he said, word-for-word back then, but he was not a fan of Barry Manilow’s, because he basically said that Manilow was the type of musician who was making millions of dollars without “contributing” anything original to the world of music. He was right. But a lot of music-lovers want an entertainer who fits a certain stereotype from the past, and they’re not looking for originality.

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