Attorneys for Taylor Swift are asking a federal judge to exclude several “unqualified” expert witnesses from her upcoming copyright trial over “Shake It Off,” including one who they claim is “simply making it up as he goes along.”
After more than five years of litigation, Swift is finally scheduled for a jury trial in January over allegations that she stole the core lyrics to her 2014 chart-topping hit from a 2001 song called “Playas Gon’ Play” by the group 3LW. The pop star and her attorneys say the case is deeply flawed, but the judge overseeing the case has so far refused to dismiss it.
During those upcoming proceedings, each side will rely heavily on expert testimony to make their case to the jury. But in a court filing on Monday (Sept. 5), Swift’s attorneys told a federal judge that several of her accusers’ experts were not qualified to weigh in on the issues in the case – including one who they said was offering “unsupported, purely subjective, and irrelevant arguments.”
“He plainly is not qualified to provide that or any of the other opinions he has expressed in this case, and his deposition testimony confirms he is simply making it up as he goes along,” Swift’s lawyers wrote.
In a statement to Billboard on Wednesday, an attorney for Swift’s accusers described the motion as litigation gamesmanship: “The defendants simply file mounds of paper to never face the merits in this case,” said Olga Viner of the law firm Gerard Fox. “We expect the court to see through this tactic.”
The case against Swift was filed in 2017 by Sean Hall and Nathan Butler, the songwriters who wrote “Playas Gon’ Play.” In their 2001 song, the line was “playas, they gonna play” and “haters, they gonna hate”; in Swift’s track, she sings, “‘Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Swift’s lawyers have repeatedly moved to end the lawsuit, arguing that lyrics about “players” and “haters” are too commonplace to be covered by copyright law. And last month, Swift herself said she had “never heard” the earlier song she’s accused of copying. But a federal judge has refused to toss it out, sending the case hurtling toward a jury trial that’s currently scheduled for mid-January.
Monday’s motion dealt with so-called expert testimony, which plays a significant role in trials over complex issues like music and copyright infringement since jurors are typically untrained in the subject matter they need to understand.
In the filing, Swift’s attorneys asked the court to reject the opinions of a George Washington University professor retained by Hall and Butler to compare the similarity of the lyrics, saying he is “not a literary expert and he relies on abstractions and generalities while ignoring pervasive differences between the songs’ respective lyrics.” They said another plaintiffs’ expert, an accountant, offered a report that was a “complete misfire.”
But more than the others, Swift’s lawyers took particular aim at Bob Kohn, a New York-based lawyer who authored a treatise on music licensing and has previously served as an expert witness in several other major copyright cases. In a pointed comment, Swift’s attorneys said Kohn had previously faced judicial pushback during his other stints as an expert witness.
“Mr. Kohn has not hesitated to opine on subjects outside his knowledge of business practices in the music industry, leading at least three courts to reject his opinions as conclusory, beyond his expertise, or sheer legal argument,” they wrote. “But Mr. Kohn outdoes himself here.”
Kohn was retained to testify on the amount of profits from “Shake It Off” that are attributable to the lyrics Swift allegedly stole. In his report, he said the allegedly copied lyrics were the “heart” of Hall and Butler’s song and that 50% of the “Shake It Off” profits were derived from those lyrics: “Without the heart of the lyrics taken from Playas Gon’ Play, the rest of the lyrics in Shake It Off lose all of its force, meaning, and energy.”
But in Monday’s response, Swift’s lawyers said Kohn’s claims were merely “unsupported assertions disguised as expert testimony,” without any real analysis to back it up. And, citing a deposition in which they questioned Kohn about his relevant expertise, they said he had shown himself to be “patently unqualified” for the job.
“When asked to explain how his claimed expertise qualifies him to opine as to the portion of Shake It Off’s profits attributable to the lyrics players gonna play and haters gonna hate as opposed to other factors, Mr. Kohn was unable to do so,” Swift’s lawyers wrote. “He instead claimed that he has listened to music since seeing The Beatles on The Ed Sullivan Show, that he reads a lot and is a member of a book club.”
“Listening to music and reading a lot simply do not make Mr. Kohn any more of an expert than the rest of us,” Swift’s lawyers wrote.
Kohn did not immediately return a request for comment on Wednesday.