A newly revived copyright lawsuit against Taylor Swift in the Ninth Circuit could prompt a wave of questionable lawsuits because it shows how rarely courts can use creativity to judge infringement claims, some attorneys say.
The court reinstated claims that Swift’s refrain of “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate” in her 2014 hit “Shake It Off” ripped off Sean Hall and Nathan Butler’s 2001 song, which features the lyrics “Playas, they gonna play / And haters, they gonna hate.”
The U.S. Court of Appeals for the Ninth Circuit panel said in Hall v. Swift that the trial court wrongly acted as the “final judge of the worth of an expressive work.” Originality is normally a question of fact that judges can’t decide on the pleadings, the court said.
But allowing lawsuits trying to protect slight variations of common phrases to go ahead sets a problematic standard, some practitioners said.
“This could potentially open the floodgates for people filing lawsuits over people using colloquial phrases,” said Jeff Allen, a copyright attorney at Bradley Arant Boult Cummings LLP. “That’s not what copyright law was intended to protect.”
Yet while Hall and Butler’s case is “flimsy” on the merits, the Ninth Circuit probably made the right decision, Wesley Lewis, a copyright attorney at Haynes and Boone LLP, said. A fact-finder, not a judge, should decide whether a work is creative enough to have copyright protection, which is what happened in copyright lawsuits against Katy Perry and Led Zeppelin.
“This might be an interesting preview of how the Ninth Circuit is approaching that legal question. I think this is part of a trend we’re seeing in copyright cases where the bar is getting progressively lower,” Lewis said.
‘Lowering the Bar’
The lyrics in “Playas Gon’ Play” didn’t merit copyright protection because Hall and Butler’s twist on the oft-used terms was “banal” and “not at all creative,” the U.S. District Court for the Central District of California ruled in 2018. It noted lyrics from more than a dozen other song titles and band names that reference players, haters or both, claiming the notions to be “inextricably intertwined” in pop culture and akin to “runners gonna run,” drummers gonna drum” or “swimmers gonna swim.”
The court also rejected Hall and Butler’s claims that combining the generally unprotectable short phrases was creative.
“Combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough,” Judge Michael W. Fitzgerald said.
But Fitzgerald shouldn’t have made that judgment based on the record, the U.S. Court of Appeals for the Ninth Circuit ruled. Its three-page decision quoted a 1903 Supreme Court opinion by Oliver Wendell Holmes noting the dangers of judges deciding the worth of a creative work.
Courts routinely dismiss copyright infringement claims because they fail to show infringement of an original work, Frank Scibilia, a copyright attorney at Pryor Cashman LLP, said. He said the lower court’s analysis wasn’t necessarily subjective because it analyzed previously existing work using players and haters. He also said the “somewhat ordinary” phrases deserved limited protection, and noted Swift’s lyrics didn’t exactly match Hall and Butler’s.
“I think it will lead to more lawsuits,” Scibilia said of the reversal. “You’ll have people who don’t understand copyright law or looking to cash in, and it can’t be dismissed quickly. And you’re looking at discovery and a lot of excess cost if the court can’t say it’s not original.”
Scibilia said the appellate ruling could end up stifling creativity, with artists afraid of taking unoriginal phrases and imbuing them with new meaning.
Lewis questioned the brevity of the Ninth Circuit’s opinion and “vague” instructions to the lower court on remand.
“That just leads to more questions than answers once the case goes back,” he said. “There has to be a balancing test, but I feel like this has lowered the bar more on what is considered original and creative than what I think the bar really is. It’s one court, but the Ninth is very influential.”
Allen, who said he was “stunned” by the reversal, said the Ninth Circuit decision is “almost lowering the bar to the point where it’s on the ground.”
The case is: Hall v. Swift, 9th Cir., No. 18-55426, Opinion Oct. 28, 2019