You are probably familiar with Taylor Swift’s megahit, “Shake It Off.” If not, here is an amusing video of the song. You might also be familiar with 3LW’s song, “Playas Gon’ Play.” You can peruse the video here.
The issue coming to jury trial next year is this: Songwriters for 3LW are accusing Ms. Swift of taking lyrics from their song. If she did, it could be a copyright violation. The case is interesting because it tests the extent of copyright protection. If an artist takes phrases that are currently in popular use and uses them in a work, does the artist own those phrases? In particular, the 3LW tune uses variations on the phrases “players gonna play” and “haters gonna hate.” The song by Ms. Swift also uses variations of those phrases.
District Judge Michael W. Fitzgerald had previously rejected the case because in his view the lyrics in her song were too “banal” to be protected by copyright. He cited no fewer than 13 earlier songs with similar phrases and ruled that phrases like “haters gonna hate” were common in the culture. As he concisely noted, “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” Furthermore, he noted, “In sum, the lyrics at issue….are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”
In an appeal by Sean Hall and Nathan Butler, the original songwriters, the decision was reversed and landed back on Judge Fitzgerald’s desk. He rejected Ms. Swift’s request for a summary judgment dismissal and decided to allow the case to be heard by a jury. He noted,
“Even though there are some noticeable differences between the works, there are also significant similarities in word usage and sequence/structure…. The court cannot presently determine that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement, or poetic structure between the two works.”
In the end, I suspect the case will be decided on the extent of the perceived plagiarism. The phrases are essentially the same, and an incidental use is probably okay. But if the use is found to be flagrant, then that could be copyright infringement.
As noted, either outcome is not exactly an endorsement of Ms. Swift’s musicality. Door Number 1 has banality behind it, and Door Number 2 has plagiarism behind it. Given the fact that “Shake It Off” was Ms. Swift’s biggest-selling single, and the monetary damages could be substantial, Ms. Swift would certainly choose Door Number 1. Of course, the case could be settled out of court before it goes to trial.
Anyone who deals in words for a living is probably torn. Authors want their words to be protected by copyright, but also don’t want to fear that using common phrases could lead to a lawsuit. Personally, the latter concerns me more.
Anyway, Taylor, call me — I’m here to help. Meanwhile, keep your chin up, girlfriend. Look on the sunny side. Every cloud has a silver lining. There’s no reason to cry over split milk. Your lawyers will sock it to them. You know what they always say — haters gonna hate.