While Taylor Swift was recently named the “Artist of the Decade” at the American Music Awards, she has been unable to shake a copyright infringement suit over the lyrics of her 2014 hit Shake It Off. The Ninth Circuit Court of Appeals recently reversed the dismissal of copyright infringement claims against Swift after concluding that the evidence did not support a summary conclusion of lack of originality for copyright protection.

District Court Dismissed Copyright Suit

The copyright infringement suit, filed by Sean Hall, alleges that Swift copied the lyrics of his 2001 composition Playas Gon’ Play. The suit asserts a single claim of copyright infringement against Swift, which premised upon the lyrical similarities between Playas Gon’ Play and Shake it Off.

The chorus of Playas Gon’ Play consists of the following lyrics: “Playas, they gonna play / And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is / That’s the way it is.”

Meanwhile, the chorus of Shake it Off contains the following lyrics: “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 / Shake it off / 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 / Shake it off / Shake it off.”

The district court dismissed the complaint based on a lack of originality in the challenged portions of the lyrics. “The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection,” Judge Michael Fitzgerald wrote in Hall v. Swift. “Accordingly, if there was copying, it was only of unprotected elements of Playas Gon’ Play.”

As explained by the court, the Copyright Act protects “original” works of authorship fixed in any tangible medium of expression. With regard to song lyrics, they “must be sufficiently original and creative to warrant copyright protection.”  Originality means “that the work originates in the author rather than having been copied from past sources” and creativity signifies “that the work has a spark that goes beyond the banal or trivial.”

According to Judge Fitzgerald, the two allegedly infringing phrases from the lyrics of Playas Gon’ Play did not meet the standard for originality.  “By 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters … The concept of actors acting in accordance with their essential nature is not at all creative; it is banal,” he wrote.

Ninth Circuit Revived Copyright Suit

On October 28, 2019, the Ninth Circuit Court of Appeals reversed and reinstated the suit. It found that Hall’s complaint “still plausibly alleged originality” and, therefore, should not have been dismissed.

In support of its decision, the federal appeals court cited a century-old ruling from Supreme Court Justice Oliver Wendell Holmes. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits,” Holmes wrote in 1903. “At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.”

In its opinion, the Ninth Circuit emphasized that “originality, as we have long recognized, is normally a question of fact.” The court further explained:

Justice Holmes’ century-old warning remains valid. By concluding that, “for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here,” the district court constituted itself as the final judge of the worth of an expressive work. Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court’s dismissal.

The Ninth Circuit remanded the case back to the district court for further proceedings.

Key Takeaway

As the Ninth Circuit’s decision highlights, originality is typically a question of fact. Accordingly, it is very difficult to dismiss copyright infringement claims on that basis at the motion to dismiss phase. Of course, Swift may still be able to “shake” the suit as it proceeds through the litigation process.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Ron Bienstock, or the Scarinci Hollenbeck entertainment and media attorney with whom you work, at 201-806-3364.