Taylor Swift could very well still defeat a copyright lawsuit that claims she stole the lyrics to “Shake It Off,” but some legal experts tell Billboard they’re alarmed that the case is headed to trial at all.
In a ruling last week (Dec. 9), a federal judge rejected Swift’s request to dismiss the lawsuit, which claims that her 2014 Hot 100-topping hit infringed the copyright to a 2001 song called “Playas Gon’ Play” by the group 3LW. The judge said the case was too close to call, and would need to be decided by a jury trial.
The decision left the door open for Swift to be cleared at trial, and the judge even said the star singer would have a “a strong closing argument” for an eventual jury. But some experts say they’re surprised the case survived in the first place – and that it should concern Swift’s fellow songwriters, too.
“This is a bad decision,” said Joseph Fishman, a professor of music law at Vanderbilt Law School. “It makes copyright law look absurd.”
Shake It Off v. Playas Gon’ Play
At issue in the case against Swift is a key snippet of lyrics from each song. In the earlier track, songwriters Sean Hall and Nathan Butler wrote that “playas, they gonna play” and “haters, they gonna hate.” Thirteen years later, Swift told fans that “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Back in 2018, the same federal judge ruled that Hall and Butler’s case failed the smell test. Citing more than a dozen songs that used similar lyrics, U.S. District Judge Michael W. Fitzgerald ruled that American culture was “heavily steeped in the concepts of players, haters, and player haters” and that the short snippet of lyrics was not unique or creative enough to be monopolized by any particular songwriters.
But in 2019, a federal appeals court – the Ninth Circuit – overturned that decision, saying the case had been dismissed prematurely. That led to Thursday’s decision, in which Judge Fitzgerald ruled that while there were “noticeable differences” between the two songs, there were also enough “significant similarities” that he could not toss out the case again.
For Donald Zakarin, a veteran music industry litigator with the law firm Pryor Cashman who has represented Ed Sheeran and other A-listers, the case against Swift should have been rejected again for similar reasons. He warned that sending the case to trial will have a “chilling effect” on future songwriters.
“I think it’s a bad outcome, and one that is pushing something to trial that should not go there based upon well-established precedent,” said Zakarin.
Very short phrases aren’t eligible for copyright protection, but a so-called “selection or arrangement” of such unprotectable elements can still be worthy of copyright protection. That’s essentially what Hall and Butler argued about their “haters” and “players” lyrics, and Judge Fitzgerald said the argument might convince a jury to hold Swift liable.
But such “selection or arrangement” copyrights are supposed to grant only fairly limited protection to their owner, meaning only an almost exact copy of such a work would amount to copyright infringement. And experts say Swift’s lyrics, while similar, are hardly an exact copy of “Playas Gon’ Play.”
“The court could have said that for such a short lyrical snippet, you have to show more similarity than just ‘players playing’ plus ‘haters hating,’ that you’d also need to show that the whole context surrounding those phrases is similar as well,” said Fishman. “Here, by contrast, the lyrical contexts are just too different.”
“The two works would have to be almost virtually identical,” Zakarin said. “And there’s none of that here.”
Thursday’s decision wasn’t a final ruling. Judge Fitzgerald merely said Swift’s defense was not strong enough to dismiss the case out of hand, and Swift has a great chance to still prevail when the case heads to trial in August 2022.
Yet, that’s likely not much reassurance for Swift or other artists who believe they have been wrongly sued for copyright infringement. The outcome of a jury trial is infamously difficult to predict, and judges are supposed to play a gatekeeping role by applying legal precedents to filter out questionable cases before they get to a costly trial.
“There’s the expense, there’s the risk factor, there’s all the terrible press that a case like this drags up,” said Zakarin “All of that can have a chilling effect on songwriters and future creativity.”
Fishman linked the case to similar recent lawsuits over Pharrell’s “Blurred Lines,” Led Zeppelin’s “Stairway to Heaven” and Katy Perry’s “Dark Horse.” Those cases were criticized by some as seeking to control basic building blocks of music that other musicians need to be able to use.
“The smaller we slice up these parts of a song and say, ‘that’s enough to sue somebody over,’ the harder it’s going to be for today’s songwriters to write something that doesn’t include something that’s already been claimed,” Fishman said. “It’s so important for judges to be able to step in first and lay down some guidelines: this kind of copying is okay, and anyone’s allowed to do it. I wish that had happened here.”