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Taylor Swift fails to shake off the Shake It Off litigation again
By Chris Cooke | Published on Thursday 3 September 2020
The main ‘Shake It Off’ song-theft legal battle is set to plough on after the judge overseeing the case knocked back Taylor Swift’s latest efforts to have the whole matter dismissed. Or, if you prefer, Taylor Swift has failed to shake off the ‘Shake It Off’ litigation again. Because that almost pun never gets old.
This is the lawsuit being pursued by Sean Hall and Nathan Butler who accuse Swift of ripping off their 2001 song ‘Playas Gon Play’ on her 2014 hit in which, of course, she sang that “the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate”.
In 2018, a US district court judge dismissed Hall and Butler’s lawsuit on the basis that the fact of players playing and haters hating was all too “banal” for the duo’s 2001 lyric “the playas gon play/them haters gonna hate” to enjoy copyright protection in isolation.
However, Hall and Butler took their case to the Ninth Circuit appeals court, where appeal judges criticised the lower court judge for reaching such a speedy conclusion. Those judges added that Hall and Butler had “plausibly alleged originality” and therefore had a sufficiently strong case for the lawsuit to proceed to a full hearing.
As a result, the whole thing is back with the district court. Last month the Swift side filed new legal documents with said court repeating and expanding on their arguments as to why her 2018 lyric did not infringe any copyright in the 2001 ‘Playas Gon Play’ line.
That included the argument that when an idea and the expression of that idea are inseparable, the expression can’t be protected by copyright, because that would mean the idea was also protected by copyright, and copyright doesn’t protect ideas.
So, the idea is that players are going to play and haters are going to hate, while the original expression of that idea is “the playas gon play/them haters gonna hate”. Given Swift’s lyric wasn’t identical, the lawyers argued that “the only similarity between plaintiffs’ lyric … and ‘Shake It Off’s lyric … is the unprotectable idea that players play and haters hate”.
But the judge – possibly erring on the side of caution after the Ninth Circuit overturned his original ruling – this week said that argument wasn’t strong enough to dismiss the case at this stage.
He wrote: “Defendants argue that plaintiffs’ claim is precluded because the unprotected ideas underlying the alleged copied words merge with those words, rendering them unprotectable too. [But] defendants have not demonstrated merger as a matter of law, based on the allegations in the complaint”.
So, for now at least, this particular song-theft squabble continues to go through the motions. Good news for fans of the almost pun “Taylor Swift has failed to shake off the ‘Shake It Off’ litigation again”! Maybe we’ll get to use that line yet again next time this case pops up.
