Taylor Swift is known for aggressively protecting her intellectual property as a songwriter, but in Hall v. Swift she found herself on the defensive. Pop artists Sean Hall and Nathan Butler alleged Swift infringed on the lyrics to their best-known song, “Playas Gon’ Play,” in her song, “Shake It Off.”
- Hall and Butler: “Playas, they gonna play, And haters, they gonna hate.”
- Swift: “’Cause the players gonna play, play, play, play, play. And the haters gonna hate, hate, hate, hate, hate.”
Swift made a motion to dismiss and, at first, the Central District of California granted it.
In the opening of the decision, the court noted that plaintiffs did not allege that the music is similar. This, said the judge, is why he was able to come to a decision without any kind of expert witnesses and without a jury trial.
The court noted that, traditionally, short phrases are not copyrightable. The court considered the originality and creativity of the disputed words, finding that “[t]he allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection.”
The court took judicial notice of 10 songs provided by the defendant that used words like “players” and “haters” in the lyrics in an attempt to show that these concepts were not original. Plaintiffs countered that their combination of those two words was what made the lyrics sufficiently original.
The court rejected that argument by considering the allegedly infringed-upon lyrics as a combination of unprotectable elements, which are not worthy of copyright protection “unless that combination of elements is sufficiently numerous.” (What’s sufficiently numerous? We don’t know. The disputed lyrics appeared twice in “Playas Gon’ Play,” so two is not enough.) The court went on to say the lyrics are no more creative than saying Swimmers gonna swim, or Drummers gonna drum, or Runners gonna run. Expressing the inherent nature of each kind of person was not sufficiently creative for the court.
After the dismissal, the plaintiffs appealed to the Ninth Circuit.
In the Ninth Circuit’s three-page opinion, the court referenced a U.S. Supreme Court decision from 1903 when Justice Holmes pointed out that judges should not be considered competent experts in things that are aesthetic. The Ninth Circuit said more consideration should be paid as to whether there is sufficient creativity in the lyrics. It said that the development of a factual background, with expert witness testimony, was merited.
Accordingly it reversed and remanded the case back to the same judge in the district. (Note that even though getting remanded is pretty disappointing for the party who had previously won the dismissal, Swift might ultimately prevail after development of the facts.)
In my humble opinion, the problem is that, at least in courts located in the Ninth Circuit, it’s going to be very difficult for a judge to determine anything that appears not to be worthy of copyright protection on its face. A lot of cases resulting from frivolous — or at least losing — arguments will no longer be dismissed before attorneys’ fees and discovery costs start to pile up. So this is a problematic decision from the Ninth Circuit, and I look forward to seeing how it plays out.
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Turns out, concerns such as those expressed in this blog on December 10, were expressed by many others, some with enough influence to have the 9th Circuit Court of Appeals amend its decision and delete two, problematic paragraphs of the original decision. On December 9, the 9th Circuit issued a new decision which still remanded the case because plaintiff had alleged “sufficient originality” in “Playas gonna’ play, haters gonna hate” to warrant discovery. (Really? Six words, with admittedly no musical copying, are enough to allow litigation?)
On the one hand, the amended decision no longer opines that judges are incapable of making aesthetic decisions without the input of expert advice, so that theoretically, the decision will not hamper a district court’s granting a Rule 12(b)(6) motion to dismiss a copyright claim. On the other hand, even if this decision were purportedly “limited to its facts,” it will be hard to look at the appellate court’s review of these facts and wonder how a district court judge in the 9th Circuit will avoid second guessing his or her decision to throw out an apparently worthless case.
