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Californian court dismisses one of the Shake It Off plagiarism lawsuits, again

By Chris Cooke | Published on Thursday 23 July 2020

One of the plagiarism cases against Taylor Swift in relation to ‘Shake It Off’ has been dismissed. Again. And the judge has said that the plaintiff in this case could be declared a “vexatious litigant” if he doesn’t now shut up about the whole thing.

Musician Jesse Graham sued Swift through the US courts in 2015, accusing her of ripping off his 2013 song ‘Haters Gonna Hate’ on her 2014 hit. His song contained the lyric “Haters gone hate, Haters gon hate, Playas gon play, Playas gon play”. While Swift’s song, of course, included the lines: “Cause the players gonna play, play, play, play, play, And the haters gonna hate, hate, hate, hate, hate”.

The case was pretty quickly dismissed by the court. Meanwhile two other music-makers – Sean Hall and Nathan Butler – also stepped forward claiming that ‘Shake It Off’ was actually a rip-off of their 2001 song ‘Playas Gon Play’. That lawsuit was also dismissed after a judge declared that the lyrics the two songs had in common – also about players playing and haters hating – were just too “banal” to be protected by copyright.

However, the Ninth Circuit appeals court then overturned that judgement on the basis that a jury, not a judge, should have ruled on the banality, or not, of those lyrics, and what impact that may or may not have on their copyright status. Shortly after that Ninth Circuit ruling, Graham decided to have another go at pursuing his copyright claim.

Actually, it wasn’t his first retry. Last November’s lawsuit was his fourth attempt. Although this time Graham sued through his company rather than in his own right. That, Swift’s lawyers argued, was a sneaky trick to overcome the fact that on his third attempt, Graham’s lawsuit was dismissed with prejudice. Meaning he’s not allowed to sue again.

Swift’s team – when filing a motion for dismissal – also picked other holes in Graham’s latest legal claim, in particular in relation to copyright registration.

According to Law360, while ruling on that motion for dismissal, judge Andre Birotte Jr noted that Graham hadn’t really dealt with most of the issues Swift’s lawyers had raised in his response. He also criticised Graham for “several instances of misconduct”, including the allegation the musician fraudulently added the name of a law firm to his most recent court filing to make it look like his company had hired legal representation.

Dismissing the latest lawsuit, again with prejudice, Birotte added that that alleged misconduct, “along with the prior three identical cases, raise the issue of whether Graham is a vexatious litigant”. Under Californian law, being officially labelled a “vexatious litigant” puts extra hurdles in place for any future legal action you pursue. Nevertheless, and despite the risk of being officially labelled in that way, Graham has already told Law360 he plans to appeal this week’s ruling.