In 2017, pop megastar Taylor Swift was sued by songwriting duo Sean Hall and Nathan Butler over copyright infringement, specifically stemming from alleged similarities between her 2014 hit “Shake It Off” and their 2001 track, “Playas Gon’ Play,” recorded by female R&B group 3LW.
The case was initially tossed, but the dismissal was reversed on appeal in November 2019 in federal court, which now leaves T-Swift facing a jury trial after a motion to dismiss in the matter was rejected by the presiding judge. It’s worth noting that Swift successfully defended a prior suit in 2015 with substantially the same facts in evidence, namely that singer Jessie Braham had a song entitled “Haters Gonna Hate” which shared the titular lyrics with Swift’s girl-power anthem. The 2015 suit was dismissed due to insufficient factual evidence to back Braham’s claims.
On its face, this seems like a very straightforward intellectual property case with an obvious winner right out of the gate. Let’s take a deep dive into this one and see who’s likely to be dancing when the jury has their say!
To prove similarity between the works at issue, the plaintiffs must first prove two things:
First, that Swift was aware of the previous song’s existence prior to writing “Shake It Off,” a claim she staunchly denies and which her mother has chimed in to refute. Second, that there is sufficient overlap between her version lyrically and/or in arrangement and execution to show conclusively that the 2001 song was directly responsible for the 2014 rendition.
This is going to be a serious and potentially lethal flaw in the plaintiffs’ argument because according to the motion requesting reconsideration by the presiding judge, the plaintiffs themselves noted that they don’t own the rights to, nor did they create, the phrases at issue, which have been in the public domain and cultural vocabulary for decades. (For example, Fleetwood Mac’s “Dreams” features the line “Players only love you when they’re playin’,” and predates the 2001 song by a quarter century.)
Next up, similarity of rendition does not in itself a copyright breach make.
There are only so many ways to construct a tautology, which is precisely what the phrase “players gonna play” is. The tautology “Sesquipedalian rodomontade [the unnecessary use of large words] is sesquipedalian rodomontade” serves to point up the very pretentiousness of the long words in question. Likewise, “Players gonna play” only means that people of this subset are going to behave in accordance with their natures and therefore there’s no point getting upset with them about doing what they’re inclined by nature or proclivity to do. “Sharks gonna shark” is another popular one in areas where sharks are commonly seen (or, not infrequently, near law offices and courthouses, for reasons I will refrain from further illuminating).
Thus, it would be very difficult for the plaintiffs to prove their case solely on the existence of a tautology that is found in English-language cultural touchstones in various forms since at least 1977, and likely far earlier. Furthermore, the construction of the tautology as rendered by 3LW, “Playas gon’ play,” and Swift’s “Players gonna play,” while obviously conveying the same concept, are rendered differently enough to muddy the waters all on their own. A side-by-side close reading of the two sets of lyrics appears to utterly negate any but the most superficial and obvious similarity, as we can see below:
This leaves us with the question of exactly how much of a song or a musical arrangement can be used, adapted, or altered before the two songs cannot be considered sufficiently similar for copyright infringement to come into play.
To answer this question, the courts have come up with two tests: intrinsic and extrinsic.
The intrinsic test is considered to be subjective, because it asks whether the “total concept and feel” of two works are similar enough to demonstrate infringement. This is similar to the question of brand dilution in trademark law I wrote about last week concerning the TV show Better Call Saul. In both cases, one of the applicable standards is whether an “unsophisticated consumer” would be likely to confuse the 2001 song for the 2014 song or vice versa.
On its face, Swift passes the intrinsic test with flying colors, because the two songs sound nothing alike and have virtually no melodic or lyrical similarities that are apparent upon close listening.
The extrinsic test is objective, because it demands a side-by-side comparison of the total content of both songs, including their musical arrangement and lyrics, without regard to how it “feels” or “appears” to the average person. Even applying the extrinsic test to the two songs, however, it’s obvious that the songs share exactly two phrases of three words each, both phrases having already been demonstrated above to have been in the public domain long enough that neither party could realistically claim sole ownership. In fact, Swift notes that she wore a T-shirt with the slogan “Haters gonna hate” during one of her concerts in 2013, a minimum of months before “Shake It Off” earwormed its way into the global consciousness—but evidence that the idea that “haters gonna hate” was already there before she penned the lyrics for the 2014 song, and not necessarily or obviously because of the 2001 song.
Finally, and most crucially, copyright law has a lot to say about this sort of thing. First, for a work to be eligible for copyright, it has to be unique, which is to say the elements of its creation must work together to create something obviously different than anything else out there. You couldn’t copyright the music to “Happy Birthday” by itself, although you could copyright a specific arrangement of it. You couldn’t copyright the English alphabet. But if you put the English alphabet to the tune of “Happy Birthday,” THAT may well be copyrightable because no one has put these elements together in this way before, especially if you had a specific or unique arrangement of the music. However, a metal cover of the song “Let It Go” from Frozen would be copyrightable, but the creators would owe royalties to Disney and the original writers of the song because it’s not a unique idea, only a unique rendition.
For this reason, you cannot copyright common or proper names, short phrases, or ideas. You can copyright the execution of an idea, short phrase, or proper name.
This is why DC and Marvel can both have characters named “Captain Marvel;” the characters are different enough in execution for the average consumer to readily distinguish between the two, the only similarities between them being the fact they’re both comic book characters and they share a moniker. “Haters gonna hate” and “players gonna play” would fall under this rubric, as they’re short phrases in common usage—only the actual rendition of them in full context is or could be copyrightable.
In this case, the plaintiffs are going to have a very difficult time convincing a jury that Swift’s 2014 song and their 2001 song share any but the most superficial possible similarity.
While it’s not impossible, the chances of success for them are small.
Based on the law and how copyright works, I think we’re going to find the plaintiffs may just have to shake this one off!
ABOUT JOHN RIZVI, ESQ.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include“Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
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