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Taylor Swift song-theft case not like Led Zep song-theft case, say Swift’s accusers

By Chris Cooke | Published on Tuesday 8 October 2019

The songwriters who accuse Taylor Swift of ripping them off when she sang about players playing and haters hating would like you all to know that their dispute over the reach of copyright law when two songs have similar elements is wholly different to the ongoing ‘Stairway To Heaven’ case over the reach of copyright law when two songs have similar elements. And anyone who thinks otherwise is clearly a hater.

Back in 2017, Sean Hall and Nathan Butler accused Swift of ripping off a 2001 song they wrote for 3LW called ‘Playas Gon Play’ on her 2014 hit ‘Shake It Off’. The lawsuit argued that Swift’s famous lyric “Cos the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate”, was basically a copy of the line “The playas gon play/Them haters gonna hate” from their 2001 track.

Swift’s legal team dubbed the song-theft legal claim a “money grab” and asked the judge to dismiss the case. Which he did early last year, on the basis that the fact of players playing and haters hating was all too “banal” for Hall and Butler’s original lyric to enjoy copyright protection in isolation. Writing about playing players and hating haters lacked the “originality and creativity” required for copyright to kick in, the judge added.

Hall and Butler then took their case to the Ninth Circuit appeals court, arguing that the question as to whether or not the simple lyric “The playas gon play/Them haters gonna hate” can enjoy copyright protection was more complex than the original judge had admitted. And therefore, they argued, their case should get some proper court time.

The same appeals court is currently considering the aforementioned ‘Stairway To Heaven’ case, in which Led Zeppelin are accused of ripping off the earlier song ‘Taurus’ on their 1971 classic.

That case went before a jury at first instance who also ruled that there was no copyright infringement because the elements shared by the two songs were simply common musical elements. The Ninth Circuit initially overturned that ruling based on some technicalities, but is now in the process of considering the case again en banc, with more judges involved.

Last week, legal reps for the Swift side submitted a notice to court alerting judges hearing the ‘Shake It Off’ case to various similarities between it and the ‘Stairway To Heaven’ case. In particular, they said, both cases centred on a debate over “the requirements for a copyrightable selection and arrangement and the standard to be applied to claims of copying of a selection and arrangement”.

Presumably the Swift side reckon that the recent Ninth Circuit hearing on the ‘Stairway To Heaven’ case – and perhaps also some key amicus briefs, such as the one submitted by the US Copyright Office and justice department – have generally erred in their favour. Mainly to the effect that, where similarities between two songs are based around short common elements, the shared components must be virtually identical for copyright to be infringed.

However, legal reps for Hall and Butler are keen to distance their legal battle from the higher profile ‘Stairway To Heaven’ dispute. Quickly submitting their own letter with the court last week, said legal reps pointed out that the latter appeal relates to a jury decision, whereas in their case the judge dismissed the litigation without it going to a full hearing. And issues over the haste with which their original case was dismissed are part of the appeal.

Also, they add, the ‘Shake It Off’ and ‘Stairway To Heaven’ cases actually centre on different kinds of copyright: lyrics and musical composition respectively.

The lawyers write: “[This case] involves a lyrical sequence, while the [‘Stairway’] case involves a musical composition. Appellants in this case argue that the copyrightability analysis dealing with a literary work is different from other creative expressions”.

They then add: “While one of the arguments submitted in the [‘Stairway’] case contends that a sequence of musical notes should be adjudged in the same way as a combination of elements reflected in visual works, such as photographs or computer games, the court’s resolution of the question presented in [‘Stairway’] would still leave unresolved the question pending in this case”.

So there you go. According to Law360, oral arguments in the ‘Shake It Off’ case are due to kick off next week.