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Court Shakes Off Dumb Copyright Lawsuit Against Taylor Swift

from the lawyers-gonna-lawyer,-judges-gonna-judge dept

For an industry that talks up how important copyright law is, it’s fairly astounding how frequently there are really dumb lawsuits filed between musicians. Lately, because of the ridiculous “Blurred Lines” verdict, there have been tons of lawsuits filed over “sounds like” songs, or even “inspired by” songs, as lawyers (and some musicians) see a chance to cash in on the actual success of others. But we’ve also seen a bunch of really dumb lawsuits filed over the use of similar phrases. A few years ago there was the case where Rick Ross sued LMFAO because they had the line “Everyday I’m shufflin'” in a song that he claimed was infringing his “Everyday I’m hustlin’.” The court was not impressed.

Last year a similar case was filed (which I’d meant to write about when it was filed, but a million other things got in the way), in which Sean Hall sued Taylor Swift claiming that her lyrics in “Shake it Off” were similar to a song he wrote called “Playas Gon’ Play.” The songs themselves were not similar, but both used lines about how “playas gonna play” and “haters gonna hate” (though not even exactly in the same way). Thankfully, once again, the court hearing the case is not at all impressed:

The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection. Accordingly, if there was copying, it was only of unprotected elements of Playas Gon’ Play.

This is pretty core, basic copyright 101 stuff. Copyright does not attach to short phrases that don’t have any originality or creativity. Indeed, while the judge, Michael Fitzgerald, will allow Hall to try again with an amended complaint, he makes it clear that he sees little likelihood of success and hints strongly that trying again could lead to sanctions against the lawyer:

While the Court is extremely skeptical that Plaintiffs will – in a manner consistent with Rule 11 – be able to rehabilitate their copyright infringement claim in an amended complaint, out of an abundance of forbearance it will give Plaintiffs a single opportunity to try. Any future dismissal will be without leave to amend.

The mention of “Rule 11” is significant, because that’s the rule that establishes how lawyers are expected to act in court, and allows for sanctioning of lawyers who don’t follow it. Saying explicitly that the court doesn’t see how Hall’s lawyers can be “consistent with Rule 11” in any refiling is basically saying, “Not only do I not think you have a case, this case is so dumb that you lawyers may have to pay up for filing such a frivolous lawsuit.”

And that doesn’t even touch on the fact that with copyright cases, it’s much easier to get legal fees paid for filing silly lawsuits. Even if Rule 11 isn’t used against the lawyers, the court could still order Hall to pay Swift’s legal fees for this silly case. Indeed, as the ruling points out in great detail, this is a very silly case.

As reflected in Defendants’ RJN, and as Plaintiffs acknowledge, by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters. Although Plaintiffs recognize as much, they allege that they “originated the linguistic combination of playas/players playing along with hatas/haters hating…” …. Plaintiffs explain that the plethora of prior works that incorporated “the terms ‘playa’ and hater together all revolve about the concept of ‘playa haters’” – a “playa” being “one who is successful at courting women,” and a “playa hater” being “one who is notably jealous of the ‘playas’” success.” …. Plaintiffs explain that Playas Gon’ Play “used the terms in the context of a third party, the narrator of a song who is neither a ‘playa’ nor a hater, stating that other people will do what they will and positively affirming that they won’t let the judgment of others affect them.”…

The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. 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.” Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of “playas, they gonna play” and “haters, they gonna hate” is sufficiently creative to warrant copyright protection. …

“It is true, of course, that a combination of unprotectable elements may qualify for copyright protection… But it is not true that any combination of unprotectable elements is eligible for copyright protection… [A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Satava, 323 F.3d at 811 (internal citations omitted; emphasis in original).

Looking at this case from a combination-of-unprotected-elements perspective, Plaintiffs’ combination of “playas, they gonna play” and “haters, they gonna hate” – two elements that would not have been subject to copyright protection on their own – is not entitled to protection. See id. at 812 (“The combination of unprotectable elements in Satava’s sculpture falls short of this standard. The selection of clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection.”); Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003) (“Lamps Plus’s mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work as required by § 101 [of the Copyright Act].”). Two unprotectable elements that, given pop culture at the time, were inextricably intertwined with one another, is not enough.

And the court concludes, again, with a warning that refiling an amended complaint is risky, as the court has trouble seeing how there’s any chance of success:

In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act. In light of the fact that the Court seemingly “has before it all that is necessary to make a comparison of the works in question,” Peter F. Gaito Architecture, 602 F.3d at 65, the Court is inclined to grant the Motion without leave to amend. However, out of an abundance of caution, the Court will allow Plaintiffs one opportunity to amend, just in case there are more similarities between Playas Gon’ Play and Shake it Off than Plaintiffs have alleged thus far (which Plaintiffs’ counsel did not suggest at the hearing). If there are not, the Court discourages actual amendment. The more efficient course would be for Plaintiffs to consent to judgment being entered against them so that they may pursue an appeal if they believe that is appropriate.

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Comments on “Court Shakes Off Dumb Copyright Lawsuit Against Taylor Swift”

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13 Comments
Anonymous Coward says:

Key take-away is that courts often, usually, and I'd say in this area, over 97 percent of time, GET IT RIGHT.

Plaintiff is still muttering darkly that judge isn’t an expert and had no authority to judge the artistics heights of “playas gonna play”.

Anyhoo, a RARE kudo (single) to YOU, Masnick, for not overlooking this even though you despise Taylor Swift for in 2015 shutting down Apple’s scheme of not paying musicians during the first 90 days for EACH subscriber, which would have removed nearly all payouts.

The Wanderer (profile) says:

Re: Key take-away is that courts often, usually, and I'd say in this area, over 97 percent of time, GET IT RIGHT.

Hint: “kudos” is not a plural noun, it’s a mass noun. There is no such thing as a “kudo”, unless you’re talking about a person named like some of the characters in Meitantei Conan.

It’s not even pronounced the same way. “Kudos” rhymes with “dose”, not with “doze”.

christenson says:

Do courts get it right often?

I think that the first part of the problem is sampling bias…we hear about the BS cases, especially if the court screws up…and not usually the good ones they get right.

Second problem, here, is that I think Rule 11 should have been invoked and the plaintiff’s lawyers sanctioned for their frivolity. But blue lives matter, remember? This is where it starts.

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