SANKALPA KOIRALA*
1. Introduction
In 2018, the United States District Court for the Central District of California, decided in favour of Taylor Swift (by allowing her request for a summary judgement) in a musical copyright infringement case brought against her. The plaintiffs in the case had alleged that the chorus in the song “Shake It Off” by Taylor Swift had copied their hit song titled “Playas Gon’ Play” released in 2001. It was alleged that Swift illegally copied a six-word phrase and a four-part lyrical sequence. The concerned lyrics were “players gonna play” and “haters gonna hate”, as seen in the chorus part of the song “Shake It Off”. More specifically, it was alleged that Swift’s lyrics in “Shake It Off” (“Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate”) infringe on their song’s lyrics (“Playas, they gonna play / And haters, they gonna hate”). The district court dismissed the case for a lack of originality of the six-word phrase and four-part lyrical sequence. Such a lack of originality results to a lack of copyright protection to the concerned lyrics in the song “Playas Gon’ Play”. The Ninth Circuit (upon appeal from the district court) however, reversed and remanded the case. Now, a federal judge in December, 2021 denied Taylor Swift’s request to throw out the copyright infringement suit at summary judgement itself and thus, the case could go to trial.
2. Legal Background of the Ongoing Dispute
Copyright protection is only provided to those expressions that hold originality. Originality is a sine qua non for copyright protection. The requirement of “originality” refers to those works that are independently created by the authors and it possesses a minimal degree of creativity. This was decided in the case of Fiest Publications, Inc. v. Rural Telephone Service Co. (1991). But, a clarification that the court provided was that “originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.” To further clarify this point, the court stated that “to illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.”
There is another way to understand the difference between the usage of the words “originality” and “novelty”. In copyright disputes “originality” of the work is observed but in case of patent disputes “novelty” of the invention is observed. Thus, for an invention to be patentable, it must be “novel” but, for a (musical) work to be copyrightable, the work need not be “novel”, but only “original”. Thus, the threshold for “novelty” is higher than that for “originality”.
Therefore, the use of the words “playas gon’ play” and “haters gon’ hate” in the song “Playas’ Gon Play” must hold originality to be copyrightable and to bring a claim against Taylor Swift’s song “Shake It Off” which uses those six-word phrase in the chorus. It should be noted that not all lyrics can be original, even though the song has been provided with a copyright. There is no “presumption of originality” of all the musical elements just because the overall work (song) has been provided with a copyright. The district court, while finding a lack of originality, (in the original judgement) cited the case of Satava v. Lowry (2003) which stated that “any copyrighted expression must be ‘original.’ Although the amount of creative input . . . required to meet the originality standard is low, it is not negligible.”
However, the Ninth Circuit reversed and remanded the original judgement by the district court as it found that the absence of originality was not established on the face of the complaint or through the judicially noticed matters. Here, it is to be noted that the Ninth Circuit did not say that the lyrics at issue were original. It was only concerned with the process of finding the absence of originality by the district court. It has also not stated if any copyright violation has taken place. It merely remanded the case due to the deficiency in finding the absence of originality.
In the original judgement by the district court, it was stated that “in the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases ‘playas… gonna play’ or ‘haters… gonna hate’, standing on their own, no more creative than ‘runners gonna run’; ‘drummers gonna drum’; or ‘swimmers gonna swim…” The judgement further read, “in sum, the lyrics at issue… are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”
However, after being remanded back, Judge Fitzgerald has decided that “even though there are some noticeable differences between the works, there are also significant similarities in word usage and sequence/structure.” He further added, “the court cannot presently determine that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement, or poetic structure between the two works.” Here, Judge Fitzgerald has only denied a request for summary judgement by Taylor Swift. Here, a final decision as to copyright violation has not been provided, as the case is still to go to trial.
Firstly, what is observed from Judge Fitzgerald’s judgement (after remand) is that the suit cannot be “shaken off” at summary judgement itself. Summary judgement is granted to the defendant (i.e. Taylor Swift, in the case at hand) when the works are so dissimilar that an infringement claim would be without merit.1 Further, it can only be provided (in favour of the defendant) in cases where mere copying of facts or copying of expressions which are obviously dissimilar has occurred.2 (Here, it is to be noted that facts are unoriginal, and thus cannot be copyright protected.) In the case of Narell v. Freeman, it was decided that “…summary judgment is appropriate … [in favour of the non-moving party (defendant) if]…no reasonable juror could find substantial similarity of ideas and expression.” As already stated, Judge Fitzgerald decided that “even though there are some noticeable differences between the works, there are also significant similarities in word usage and sequence/structure”. He further decided that “the court cannot presently determine that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement, or poetic structure between the two works.” Thus, it is reasonable to conclude that the suit cannot be “shaken off” at summary judgement itself.
Here, it would be pertinent to note that the use of summary judgement on the issue of substantial similarity is said to be unusual.3 The question as to substantial similarity is a question of fact. However, summary judgement limits itself to the extrinsic test which only deals with the legal aspect of copyright dispute.4 It is for this reason that summary judgements are rare. Therefore, the district court’s decision to reject the plea for summary judgement by Taylor Swift is reasonable.
Now, this piece will analyse if the issue of copyright infringement in the case can be easily “shaken off” or not by the jury (in trial).
Swift’s Attorney, Peter Anderson has criticised the judgement (after remand) by Judge Fitzgerald stating that the judgement has ignored the extrinsic test wherein the protected and unprotected elements of musical works are distinguished. Further, he stated that, “both works use versions of two short public domain phrases — ‘players gonna play’ and ‘haters gonna hate’ — that are free for everyone to use.” It has been previously observed that western music and litigation on it suffers from difficulty in differentiating plaintiff’s work from the music in the public domain.5 Similar issue is said to have repeated in the case.
( In my recent article, I have discussed the various tests undertaken by the Ninth Circuit to determine copyright infringement, in detail. I discuss concepts like the extrinsic test, the intrinsic test, the inverse ratio rule (now abrogated by the Ninth Circuit), summary judgement, sub-conscious copying, borrowing from the past, etc. In this piece, I shall only deal with the second criticism by Swift’s attorney which concerns the “public domain” argument. For this purpose, I will refer to the concepts of “creativity and originality”. For a discussion as to the first criticism (i.e. the lack of extrinsic test by Judge Fitzgerald), reference can be made to my recent article. )
3. Creativity and Originality
As already discussed above, the original judgement by the district court decided that the phrases “players gonna play” and “haters gonna hate” as seen in the plaintiff’s musical composition were unoriginal to be provided with copyright protection. Next, even if the summary judgement has been denied by the district court, Judge Fitzgerald has acknowledged that Swift’s experts made a strong and persuasive arguments but failed to establish why the case should not go to trial.
While the present case deals with originality of the concerned lyrics, and does not concern itself with the tempo and melody, a reference can be made to musical harmonies to understand the requirement of originality. Basic musical harmonies are too unoriginal to provide them with copyright protection.6 Some musical notes form the basis of musical compositions and cannot be copyright protected as it would restrict future musical compositions. They are unoriginal as they form the basis of musical compositions. For example, in the case of Newton v. Diamond, the Ninth Circuit decided that “C-D[b]–C, over a held C note…, lacked sufficient originality to merit copyright protection.” Criticising the judgement by Judge Fitzgerald, Anderson (who represented Taylor Swift) has said “plaintiffs could sue everyone who writes, sings, or publicly says ‘players gonna play’ and ‘haters gonna hate’ alone with other tautologies. To permit that is unprecedented and ‘cheat[s] the public domain.'”
In the original judgement, the court had cited thirteen different earlier songs that used similar phrases in the lyrics. The district court’s judgement (after remand) features an argument made by the plaintiff’s legal team which stated that “…there are at least seven elements in the selection and arrangement of the four-part lyrical sequence at issue that the chorus of ‘Shake’ copies from ‘Playas,’ including, for example: 1) Shake’s combination of tautological phrases; 2) parallel lyrics; and 3) grammatical model ‘Xers gonna X.’” However, as already mentioned, the original judgement stated how the lyrics at issue are no more creative than terms like “runners gonna run” and “swimmers gonna swim”. I agree with the district court’s original judgement in this regard, which suggests that a simple “Xers gonna X” lyric cannot fulfil the originality requirement. I also agree with Anderson (who represented Taylor Swift) that the plaintiffs cannot be allowed to sue anyone who uses “players gonna play”, “haters gonna hate” alone with other tautologies. Such lyrics should not be privatised as privatisation of such lyrics that are not original would hamper its socialistic (public) use. A similar issue can be observed in copyright infringement cases brought against Katy Perry (concerning her song “Dark Horse”) and Robin Thicke (concerning his song “Blurred lines”), where the courts privatised (in favour of the plaintiffs) such elements of musical works that should not have been privatised. The judgements have been highly criticized in the legal and the musical world. In my opinion, similar issue has repeated in Swift’s case where privatisation has been sought of such lyrics that does not hold enough originality. Further, it should be noted that if copyright protection is provided to such lyrics, it will further add to the unwanted but yet ongoing issue of “hits bring writs”. Additionally, reference can be made to a decision by the US District Court for the Southern District of New York, wherein it was decided that the use of the common lyric “party and bullshit” cannot amount to copyright infringement as the concerned lyric was a not a protectable expression. It is for these reasons that the concerned lyrics in the song “Playas Gon’ Play” does not fulfil the requirement of “originality” and thus, no copyright infringement can be established. However, this is not to say that a summary judgement should have been provided to Taylor Swift, as the threshold for providing a summary judgement in favour of a defendant has not been met.
4. Conclusion
The judgement denying summary judgement is reasonable, as the judgement complies with the existing jurisprudence regarding summary judgement. Further, since summary judgements are a rarity, Judge Fitzgerlad’s decision denying a request for summary judgement is reasonable. Next, it has to be accepted that it is difficult to establish exactly where lyrics and melodies becomes original and entitled to copyright protection.7 However, from the arguments that have already been observed in the ongoing dispute (including those observed in the original judgement and those observed as criticisms to the latest judgement by Judge Fitzgerald), I am of the opinion that there has not been any copyright infringement as the lyrics are too unoriginal to be provided with copyright protection. Therefore, while the suit could not be “shaken off” at the stage of summary judgement itself, it should be “shaken off” easily during the trial, as the lyrics at issue are unoriginal and are not copyright protected. Now, it remains to be observed what the jury will decide during the trial.
*Sankalpa is a founding editor at NepScholaris. He is a B.A. / LL.B. (Hons.) candidate at Rajiv Gandhi National University of Law, India.
(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers.)
1 Twentieth Century-Fox Film Corp v MCA Inc 715 F 2d 1327, 1330 (9th Cir 1983)
2 Montgomery Frankel, ‘From Krofft to Shaw, and Beyond – The Shifting Test for Copyright Infringement in the Ninth Circuit’ (1990-1991) 40 Copyright L Symp 429
3 T-Peg Inc v Vermont Timber Works Inc 459 F 3d 97, 112 (1st Cir 2006); Berkic v Crichton 761 F 2d 1289, 1292 (9th Cir 1985); Shaw v Lindheim 919 F 2d 1353, 1355 (9th Cir 1990)
4 Seth Swirsky v Mariah Carey 376 F 3d 841, 845 (9th Cir 2004); Brown Bag Software v Symantec Corp 960 F 2d 1465, 1477 (9th Cir 1992)
5 Margit Livingston and Joseph Urbinato, ‘Copyright Infringement of Music: Determining Whether What Sounds Alike Is Alike’ (2013) 15 Vand J Ent & Tech L 227
6 Sergiu Gherman, ‘Harmony and Its Functionality: A Gloss on the Substantial Similarity Test in Music Copyrights’ (2009) 19 Fordham Intell Prop Media & Ent L J 483
7 Ridhima Bhardwaj and Sankalpa Koirala, ‘Halfway on the “Stairway to Heaven”: An Analysis Of Copyright Protection For Musical Works In The Ninth Circuit’ (2022) 5 (1) Journal of Intellectual Property Studies 72 < https://journalofipstudies.files.wordpress.com/2022/01/halfway-on-the-stairway-to-heaven-an-analysis-of-copyright-protection-for-musical-works-in-the-ninth-circuit.pdf > accessed 16 January 2022
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