Taylor Swift was successful in court last week in her ongoing legal battling over the 2014 hit ‘Shake It Off’. Though this was in relation to the lawsuit pursued by musician Jesse Graham, not the separate and more newsworthy case instigated by Sean Hall and Nathan Butler.
In the latest development in the former dispute, the US Ninth Circuit appeals court upheld a lower court ruling from 2020 in which a judge dismissed Graham’s most recent litigation.
Graham sued Swift in 2015 accusing her of ripping off his 2013 song ‘Haters Gonna Hate’ on ‘Shake It Off’. His song contained the lyric “Haters gone hate, Haters gon hate, Playas gon play, Playas gon play”. And then Swift, on her hit, sang “Cause the players gonna play, play, play, play, play, And the haters gonna hate, hate, hate, hate, hate”.
That original lawsuit was dismissed quite quickly by the court. Then in 2017 songwriters Hall and Butler went legal, arguing that those key lyrics from ‘Shake It Off’ actually ripped off one of their songs, ‘Playas Gon Play’, which they had written all the way back in 2001. That song had the lyric “The playas gon play/Them haters gonna hate”.
The Hall/Butler case was also dismissed, with judge Michael Fitzgerald ruling that the lyrics about players playing and haters hating were simply too “banal” to enjoy copyright protection in isolation. However, they successfully got their lawsuit reinstated by taking the matter to the Ninth Circuit, which ruled that Fitzgerald was too hasty in throwing out the lawsuit, and should have probably allowed a jury to rule on whether the key lyrics were protected by copyright.
That case therefore returned to Fitzgerald’s court where it continues to go through the motions. The Swift side have repeatedly tried to get the Hall/Butler lawsuit dismissed for a second time, but Fitzgerald – while implying that he recognises the strength of the legal arguments being made by Swift’s legal team – has so far declined the new dismissal request.
He seemingly reckons that, however strong the Swift side’s arguments may be, nothing has really changed in those arguments since the case began, meaning that the Ninth Circuit would likely also oppose any second dismissal. Therefore the whole matter should proceed to jury trial.
As the Hall/Butler case has been proceeding, Graham has made various new attempts to pursue his copyright claim against ‘Shake It Off’, possibly encouraged by the fact Hall and Butler had managed to keep their lawsuit alive despite the initial dismissal.
Though, in the main, he has not been as successful. In November 2019 he had a fourth stab at pursuing a claim, that time suing via his company rather than in his own right, presumably because his third attempt had been dismissed with prejudice, meaning he technically wasn’t allowed to sue again.
The Swift side successfully got that latest lawsuit dismissed the following July. In that ruling, the judge hearing the case, Andre Birotte Jr, said that Graham hadn’t really addressed any of the Swift side’s arguments when responding to their motion for dismissal.
Birotte also accused Graham of some misconduct and – given his previous three lawsuits – suggested that the musician was becoming “a vexatious litigant”, ie someone who repeatedly takes legal action against others in cases without any merit. Under Californian law, being officially labelled a “vexatious litigant” puts extra hurdles in place for any future legal action you pursue.
Nevertheless, Graham quickly vowed to appeal Birotte’s ruling, which is what the Ninth Circuit ruled on last week. The appeals judges basically concurred with Birotte that Graham had not effectively countered the Swift side’s arguments.
They wrote in a super short judgement: “In his opening brief, Graham failed to address the grounds for dismissal and has therefore waived his challenge to the district court’s order”. Simple.
It remains to be seen how Graham responds. Meanwhile, the Hall/Butler case continues.