Taylor Swift will head back to court over ‘Shake It Off’.
The 29-year-old singer was sued by songwriters Sean Hall and Nathan Butler in September 2017, who claimed her 2014 single ‘Shake It Off’ – which had the chorus, “Players gonna play, play, play, play, play, and haters gonna hate, hate, hate, hate, hate” – ripped off ‘Playas Gon’ Play’, a track they wrote for girl group 3LW in 2001 which featured the phrase, “Playas, they gonna play, and haters, they gonna hate.”
And although in February 2018, District Court Judge Michael W Fitzgerald rejected the lawsuit, arguing the lyrics in question were “too brief, unoriginal and uncreative” to receive copyright protection, a three-judge panel of Ninth Circuit judges at the federal appellate court ruled on Monday (28.10.19) that the conclusion was premature.
According to The Hollywood Reporter, the new ruling read: “Originality, as we have long recognised, is normally a question of fact.”
The judges then quoted late Supreme Court justice Oliver Wendell Holmes Jr., who once wrote, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”
The ruling continued: “Justice Holmes’ century-old warning remains valid.
“By concluding that, ‘for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here,’ the district court constituted itself as the final judge of the worth of an expressive work.
“Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court’s dismissal.”
The case has now been remanded back to a district court for further proceedings.
The ‘Me!’ hitmaker’s legal team had previously asked for the case to be dismissed.
They wrote at the time: “There can be no copyright protection in ‘playas, they gonna play and haters, they gonna hate,’ because it would impermissibly monopolise the idea that players will play and haters will hate.
“Plaintiffs’ claim to being the only ones in the world who can refer to players playing and haters hating is frivolous… Providing a copyright monopoly in the phrase would prevent others from sharing the idea that players play and haters hate.”
The lawyers went on to argue the concepts were “public domain cliches” and insisted courts have consistently held that short phrases cannot be copyrighted.
They also cited other references to “players” and “haters” in pop culture, including Fleetwood Mac’s 1977 single ‘Dreams’ and ‘Playa Hater’, a 1997 track from Notorious B.I.G..
A spokesperson for the ‘Gorgeous’ singer previously slammed the lawsuit as “ridiculous” and a “money grab”.
They said: “This is a ridiculous claim and nothing more than a money grab. The law is simple and clear. They do not have a case.”
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