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Hall v. Swift: Ninth Circuit Revives “Shake It Off” Copyright Lawsuit

Copyright Reports

Sean Hall d.b.a. Gimme Some Hot Sauce Music, et al. v. Taylor Swift, et al., No. 18-55426 (Fed. Cir. Oct. 28, 2019).

On October 28, 2019, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the U.S. District Court for the Central District of California’s dismissal of a complaint against Taylor Swift, Martin Sandberg, and Karl Schuster (“Swift”) alleging copyright infringement of the song “Shake It Off.” The district court, holding that the allegedly copied fragments were not protected under the Copyright Act, had granted the motion to dismiss brought by Swift in response to the suit filed by the plaintiffs, Sean Hall and Nathan Butler (“Hall”).

This case hinges on the similarity between two phrases in the lyrics of the songs’ respective choruses. The plaintiffs allege that “Shake It Off” contains lyrics which were illegally copied from Hall’s song “Playas Gon’ Play,” released by pop group 3LW in 2001. The chorus of Hall’s song contains the phrases: “Playas, they gonna play / And haters, they gonna hate.” Swift’s, released in 2014, contains the lyrics: “‘Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.“ It is worth noting that, in 2015, another copyright suit against Swift involving the same words, but allegedly copied from Jessie Braham’s “Haters Gone Hate,” was dismissed (in an opinion plagued with Swift repertoire references).

In granting Swift’s motion to dismiss, the district court considered itself able to determine the issue of similarity between the two works without the aid of experts or a jury. The district court then proceeded to analyze whether the phrase “Playas, they gonna play / And haters, they gonna hate” is entitled to copyright protection under the Copyright Act. While the court acknowledged that short phrases may be protected by copyright, it found that this particular phrase lacked the necessary elements of originality and creativity for protection. To reach this conclusion, the district court held that the concepts of “players,” “haters,” and “player haters” were so common in popular culture by 2001 that Hall’s phrase, even if considered as a combination of unprotectable elements, did not warrant protection.

The plaintiffs appealed and the Ninth Circuit, reviewing the dismissal de novo under Federal Rule of Civil Procedure 12(b)(6), reversed and remanded. After recalling that the complaint had been dismissed due to a lack of originality in Hall’s work, the court noted that the complaint “still plausibly alleged originality”. Moreover, it held that the determination of a work’s originality, and thus its protection by copyright, is a matter of fact and not of law. Finally, the court stated that, by concluding that Hall’s phrases were not sufficiently creative to be protected, the district court had “constituted itself as the final judge of the worth of an expressive work.”

In practice, the Ninth Circuit’s decision has been perceived as reviving a lawsuit that was considered bound to fail until now, a decision which has important implications for a variety of actors. For the IP industry, this holding might lead to an increase in questionable copyright suits, since the “originality” of a work is now a criteria that must be determined as a question of fact, not law. In turn, the music business will likely interpret this move as contributing to a recent trend of litigation against major artists. Taylor Swift’s spokesperson stated that this case is “a crusade for Mr. Hall’s bank account” and predicted a definitive success in the proceedings.

Julian Rotenberg is an LLM student interested in technology, intellectual property, and music at Harvard Law School.