By Thomas Long, J.D.
The question of whether the plaintiffs’ allegedly infringed lyrics were sufficiently original to be copyrightable was a fact-intensive issue that should not have been determined on the pleadings.
The U.S. Court of Appeals in San Francisco has revived a copyright infringement lawsuit against pop star Taylor Swift and others over song lyrics allegedly copied and used in Swift’s song, Shake It Off. According to the appellate court, the district court improperly dismissed the complaint filed by co-authors of the musical composition Playas Gon’ Play for a lack of originality in the pertinent portions of the plaintiffs’ work. Originality, explained the appellate court, was ordinarily a question of fact, and the complaint plausibly alleged that the plaintiffs’ lyrics were protectable (Hall v. Swift, October 28, 2019, per curiam).
Plaintiffs Sean Hall, d.b.a. Gimme Some Hot Sauce Music, and Nathan Butler, d.b.a. Faith Force Music, are co-authors and copyright owners of the musical composition titled Playas Gon’ Play. 3LW, an all-girl group that gained popularity in the early 2000s, performed Playas Gon’ Play and released it to the public in May 2001. Hall and Butler alleged that the musical composition titled Shake It Off, co-authored, performed, and recorded in 2014 by Swift, copied lyrics from Playas Gon’ Play. Hall and Butler asserted one claim of copyright infringement against Swift, Shake It Off co-authors Karl Martin Sandberg, Karl Johan Schuster, music publishers Sony/ATV Music Publishing, LLC and Kobalt Music Publishing America Inc., Swift’s record label Big Machine Label Group, LLC, and music distributor Universal Music Group, Inc.
On February 13, 2018, the district court granted the defendants’ motion to dismiss the complaint for failure to state a claim. The court found that the phrase "Playas, they gonna play / And haters, they gonna hate" was not sufficiently original to be copyrightable. "The concept of actors acting in accordance with their essential nature is not at all creative; it is banal," the district court said. By 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, as merely descriptive and therefore, not protectable. The combination of two unprotectable phrases that, given pop culture at the time, were inextricably intertwined with one another, was not enough to render the combination protectable, according to the court. The plaintiffs did not combine the unprotected elements "playas ... gonna play" or "haters ... gonna hate" in such a way as to convert them into a sufficiently original and creative whole. "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," the district court concluded.
The plaintiffs appealed to the Ninth Circuit, which reversed the district court’s dismissal. "Even taking into account the matters of which the district court took judicial notice ... [the] complaint still plausibly alleged originality," the appellate court said. Originality was normally a question of fact, the court explained, adding that the absence of originality was not established either on the face of the complaint or through the judicially noticed matters. By concluding that, to be copyrightable, lyrics "must be more creative than the lyrics at issues here," the district court improperly acted as the final judge of the worth of an expressive work. Accordingly, the Ninth Circuit reversed the district court’s decision granting the motion to dismiss and remanded the case.
This case is No. 18-55426.
Attorneys: Gerard P. Fox (Gerard Fox Law, PC) for Sean Hall d/b/a Gimme Some Hot Sauce Music and Nathan Butler d/b/a Faith Force Music. Peter J. Anderson (Davis Wright Tremaine LLP) for Taylor Swift, Sony ATV Music Publishing, LLC, Kobalt Music Publishing America Inc., and Universal Music Group, Inc.
Companies: Gimme Some Hot Sauce Music; Faith Force Music; Sony ATV Music Publishing, LLC; Kobalt Music Publishing America Inc.; Universal Music Group, Inc.
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