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Taylor Swift asks for expert witnesses to be dropped from upcoming Shake It Off trial due to lack of expertise

By Chris Cooke | Published on Wednesday 7 September 2022

As the song theft legal battle over Taylor Swift’s ‘Shake It Off’ continues to go through the motions, her legal team are keen to block two of the plaintiffs’ expert witnesses and limit the testimony of a third. The experts, you see, lack expertise. Or so say Team Swift.

This all relates to the US lawsuit being pursued by songwriters Sean Hall and Nathan Butler, who reckon Swift’s 2014 hit rips off their 2001 song ‘Playas Gon Play’. The latter song, recorded by 3LW, includes the lyric “the playas gon play/them haters gonna hate”, while ‘Shake It Off’ famously includes the line “the players gonna play, play, play, play, play/and the haters gonna hate, hate, hate, hate, hate”.

The Swift side initially got the lawsuit dismissed on the basis lyrics about players playing and haters hating were too generic to be protected by copyright in isolation. But the litigation was reinstated by the Ninth Circuit appeals court, and subsequent efforts to get it dismissed a second time – mainly based on the same arguments as before – have been unsuccessful.

With the whole matter now heading to trial, Swift’s lawyers have submitted new court papers taking issue with some of the expert witnesses that Hall and Butler’s team intend to call. In a bid to have those experts’ testimonies cut back or cut entirely, the Swift side either question each expert’s credentials, or take issue with things they have said in depositions that occurred or documents that were submitted during the discovery phase of this case, or both.

Among the three targeted witnesses is Loren Kajikawa, a Professor at George Washington University and one of those musicologists that pop up in song theft disputes of this kind. His testimony will focus on the application of the so called ‘extrinsic test’ that is usually employed in copyright cases like this one, which Swift’s lawyers describe as being the process of assessing “the objective similarities of the two works, focusing only on the protectable elements of the plaintiffs’ expression”.

But, argue Team Swift, Kajikawa “is not qualified, fails to apply the extrinsic test and instead provides his subjective views”. The key problem, they add, is that this particular song-theft dispute is all about the lyrics – so basically it centres on the comparison of two literary works. But Kajikawa “has no degree in literature and no training in comparative literary analysis (beyond the possibility he might have once taken an undergraduate class)”.

Swift’s lawyers go on: “He has not read any books on comparative analysis of lyrics or comparative linguistic analysis, and he does not have any understanding as to the methodology used in the comparative linguistic analysis of two works. He also does not teach literature or poetry and has never written a song or lyrics”.

In fact, they add, “Professor Kajikawa’s area of study is the dynamics of race and politics. [And] like the person with a hammer who sees everything as a nail, Professor Kajikawa argues that anyone who doubts the originality of combining a ‘players gonna play’ phrase with a ‘haters gonna hate’ phrase ‘signals an inability or unwillingness to recognise the validity of black vernacular expression’”.

“That assertion is not only insulting and baseless”, the Swift filing goes on, “but irrelevant to the extrinsic test, which ‘assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression’, not subjective assertions as to the ‘validity’ of a claimed source”.

The next expert whose expertise is being questioned is there to offer an opinion on a specific question, which is: if the court was to conclude that ‘Shake It Off’ infringed ‘Playas Gon Play’, “what portion of the profits [from] ‘Shake It Off’ are attributable to that song’s [claimed] use of lyrics from the song ‘Playas Gon Play'”.

That expert is New York-based lawyer Bob Kohn and, say Team Swift, while he may well be an expert on music industry business practices and music licensing, he lacks expertise regarding that specific question. “He plainly is not qualified to provide that or any of the other opinions he has expressed in this case”, the Swift side claim, “and his deposition testimony confirms he is simply making it up as he goes along”.

Citing some of what Kohn seemingly said in that deposition, the new filing goes on: “Plaintiffs rely on an expert who opines that the allegedly infringed combination of public domain player and hater phrases is the ‘heart’ of ‘Playas Gon Play’, without which ‘Shake It Off’ would lose all ‘force, meaning, and energy’. But that expert is a lawyer who plays no musical instruments and claims expertise because he saw The Beatles on ‘The Ed Sullivan Show’ and – like most if not all of us – listens to music”.

Finally, there is New York-based accountant Juli Saitz, who is also providing an opinion in relation to the ‘Shake It Off’ profits, and what Hall and Butler might be able to claim if they prevail in court. The Swift side argues that one of her expert opinions in that domain is just plain wrong, while also criticising her rebuttal of a report compiled by one of their experts, Barry Massarsky.

On the former point, they write: “Ms Saitz argues that it would be improper to allow a copyright defendant to deduct taxes in calculating the defendant’s profits from the alleged infringement, because that would result in ‘double-taxation’ when the copyright plaintiff is taxed on an award of profits. Yet she admitted that is just the result of the general principle of the Internal Revenue Code that each taxpayer pays taxes on the income he, she, or it receives”.

“Moreover”, they add, “Ms Saitz’s opinion that copyright defendants should not be allowed to deduct taxes in calculating profits is trumped by the established law that they may do so”.

With all that in mind, the Swift side concludes, “the court should exclude the expert opinions, testimony and reports of plaintiffs’ experts Mr Kohn and Professor Kajikawa, and should exclude Juli Saitz’s expert opinions, testimony, and reports as to the deduction of taxes and Mr Massarsky’s report and methodology”.

This story is discussed on this episode of our Setlist podcast