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Taylor Swift Must Face ‘Shake It Off’ Case After Remand (2)

Sept. 3, 2020, 3:19 PM; Updated: Sept. 3, 2020, 9:08 PM

A Los Angeles federal court ruling that Taylor Swift must face claims that her hit “Shake It Off” infringed the copyright in a 2001 song demonstrates how tough it is to resolve copyright complaints quickly.

Swift’s latest arguments to exit the case before the discovery, while “somewhat distinct,” were “indisputably interrelated” to one the U.S. Court of Appeals for the Ninth Circuit rejected, the U.S. District Court for the Central District of California said.

The lower court had dismissed songwriters Sean Hall’s and Nathan Butler’s claim in 2018, finding the lyrics not original enough to protect. But the Ninth Circuit reversed in October 2019.

The decision follows what attorneys have described as a recent Ninth Circuit trend against quick wins in copyright cases.

It also shows that when deciding whether the “selection and arrangement” of unprotected elements has become protectable, the number of shared elements required may vary by art form. Literary works like song lyrics may not require the same “numerous” elements as other art forms under Ninth Circuit precedent, U.S. District Judge Michael W. Fitzgerald said.

Attorneys said the opinion primarily reflected deference to the Ninth Circuit’s opinion, which essentially consisted of one sentence that wasn’t background or citation.

“The district court I think pretty much said ‘Well, the Ninth Circuit said there was enough originality to go forward. You’re just asking about originality in a different way, so I can’t dismiss on that basis,’” copyright attorney Jacqueline C. Charlesworth of Alter Kendrick & Baron LLP said. “The bar for originality is low.”

Merged Rulings

The songwriters claimed that the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate” in the chorus of Swift’s 2014 hit ripped off their 2001 song “Playas Gon’ Play,” performed by the group 3LW, which features the lyrics “Playas, they gonna play / And haters, they gonna hate.” The Ninth Circuit ruled that the district court shouldn’t have found, at an early stage, that the lyrics weren’t original enough to merit copyright protection.

The limited amount of work copied may result in “thin” protection, and the fact that Swift didn’t copy the list verbatim may prove decisive down the line, copyright attorney Robert J. Burger of McCarter & English LLP said. Burger also said the Ninth Circuit, and now the district court on remand, got it right by not subjectively deciding the case on the pleadings alone.

“I was surprised by the district court to begin with. It was judged as not original as a matter of law without really analyzing it, and I don’t think that’s right,” Burger said.

Swift said Hall and Butler’s claim was barred under the merger doctrine, which precludes copyright protection if the idea underlying a work can be expressed in only one way. Swift said the songwriters’ lyrics cover the general idea that “people will do what they will do.”

But Fitzgerald said the lyrics are more complex than that, and it wasn’t “abundantly clear from the Complaint that there are sufficiently few means of expressing this idea” to invoke the merger doctrine.

Fitzgerald also said the Ninth Circuit’s originality decision “dooms” Swift’s merger argument, because “if the alleged material is deemed sufficiently original, it is unclear how it possibly could be so general to fail under the doctrine of merger.”

‘Hands Tied’

The songwriters also didn’t fail to plausibly allege copyright protection in the selection and arrangement of their lyrics, Fitzgerald said.

Swift cited a number of cases suggesting that it takes a combination of more than two public domain elements, like players playing and haters hating, to render the lyrics protectable. But the district court said that the cited precedential cases involved glass sculptures and lamps, not literary works.

Swift cited Masterson v. Walt Disney, where an author claimed Disney’s animated movie “Inside Out” infringed her poetry books by depicting anthropomorphized emotions living inside a young girl’s head. The Ninth Circuit ruled in August that the five cited elements weren’t “numerous or novel enough” for protection as it affirmed dismissal.

But that decision was nonprecedential and therefore nonbinding, and the Ninth Circuit remand in Swift’s case, plus a circuit precedent distinguishing literary from other works, barred dismissal, according to the district court.

Swift also argued the parties’ lyrics would have to be “virtually identical” to sustain a copyright claim because of their “narrow range of available creative choices,” and that they weren’t virtually identical here. Fitzgerald said the court couldn’t answer that question at this stage of the case.

Jason Bloom, a copyright attorney at Haynes and Boone LLP, said the court’s analysis “seemed kind of like a results-oriented approach” and said rulings like this one could set “bad precedent that forces defendants to defend meritless cases in expensive discovery.”

“I read this opinion as saying ‘my hands are tied by what the Ninth Circuit did,’” Bloom said. “Which is unfortunate. It will not survive in the long run. It’s a bad case.”

Gerard Fox Law PC represents the songwriters. Davis Wright Tremaine LLP represents Swift.

The case is Hall v. Swift, C.D. Cal., No. 2:17-cv-06882, 9/2/20.

(Updated with additional reporting)

To contact the reporters on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com; Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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