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Albert Minn is a patent attorney with 10 years of experience practicing before the United States Patent and Trademark Office.  

 

Yesterday, in SEAN HALL V. TAYLOR SWIFT, No. 18-55426 (9th Cir. 2019), the 9th Circuit Court of Appeals reversed and remanded a lower court’s dismissal of a copyright infringement case filed against Taylor Swift in 2017.  The copyright dispute centers around Taylor Swift’s 2014 hit song “Shake it Off”, and specifically around the lyrics, “[c]ause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.”

In 2001, Sean Hall and Nathan Butler wrote the song “Playas Gon’ Play” for the group 3 Little Women (3LW), which included the lyrics “[t]he playas gon’ play / Them haters gonna hate”  In filing the copyright infringement lawsuit in 2017, Hall and Butler argued that Swift took the six-word phrase and lyrical sequence and used it in her Billboard Hot 100 hit song. 

However, in February of 2018, U.S. District Judge Michael Fitzgerald dismissed the case and rejected the notion that Hall and Butler had “originated the linguistic combination of playas/players playing along with hatas/haters hating.”  Judge Michael Fitzgerald further wrote that “[i]t is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters” when Hall and Butler wrote the song in 2001.  Ultimately, the district court held the lyrics at issue were too brief, unoriginal and uncreative to warrant protection under the Copyright Act.  

But now, a three-judge panel from the Ninth Circuit has found that decision to be premature.  In their reversal, Judges John Owens, Andrew Hurwitz and Kenneth Lee wrote that “originality, as we have long recognized, is normally a question of fact.”  Additionally, the  judges referred to a Supreme Court decision from 1903, where Supreme Court Justice Oliver Wendell Holmes stated, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”  Holmes further wrote in Bleistein v. Donaldson Lithographing Co., 188 US 239 (1903) that “[a]t the one extreme, some works of genius would be sure to miss appreciation. … At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.”  Ultimately, the appellate judges felt that “Justice Holmes’ century-old warning remains valid” because “[b]y concluding that, ‘for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here,’ the district court constituted itself as the final judge of the worth of an expressive work,” and that “because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court’s dismissal.”

The case will now head back to U.S. District Court for further proceedings.  It remains to be seen if Taylor Swift will be able to finally “Shake It Off.”  If you have other questions or need to speak with an intellectual property attorney about copyrights or copyright infringement, give Grell & Watson a call at (919) 825-3309!