Maybe Don’t Calm Down This Time
When it comes these high-profile music-and-copyright cases, my usual advice has been for everyone to calm down. In the “Blurred Lines” case, I explained that the facts were highly unusual, especially Robin Thicke’s admission that he and Pharrell were trying to imitate (if not copy) “Gotta Give It Up.” In the “Stairway to Heaven” case, I pointed to the solid-gold lining of giving the Ninth Circuit an opportunity to correct its confusing copyright jurisprudence. In the “Dark Horse” case, I blamed very bad jury instructions and held out hope that those mistakes can be corrected on appeal.
Well, the hits just keep coming, and this time I think we might give some serious thought to freaking out. I refer, of course, to the Ninth Circuit’s recent reversal of motion to dismiss granted to Taylor Swift. Perhaps I’m biased. Even though I can barely recognize any of Ms. Swift’s music, I’m kind of a homer for the Hendersonville High School graduate4Correction: attendee. She started touring and had to be home schooled. and resident of Belle Meade. But hear me out.
At issue are two lyrical phrases:
- Swift’s: “’Cause the players gonna play, play, play, play, play/ And the haters gonna hate, hate, hate, hate.”
- Plaintiffs’: “Playas, they gonna play/ And haters, they gonna hate.”
This latter phrase is from a song called “Playas Gon’ Play” by 3LW (2001). And, yeah, the phrases are pretty similar, but that’s not the issue. The issue is whether the plaintiffs can even enforce “Playas, they gonna play/ And haters, they gonna hate.” It seems awfully short for copyright protection.
The worry is that, if you let plaintiffs enforce short phrases like this, the incidence of copyright infringement will skyrocket, and not everyone sued will have Swift’s financial resources. If that’s not bad enough, consider the effect on other types of work. Music, illustration, computer code, useful articles, architecture and so forth all have their equivalent of “short phrases.”
Who Are You Calling Short?
There is something sometimes called the “short phrase doctrine.” It’s more of a truism than a doctrine, though. The real issue isn’t length but originality. Is the phrase display enough human creativity that it’s worth protecting on its own? It follows, of course, that the shorter the phrase, the fewer the creative options, and the less original the phrase can be. To be sure, we can think of exceptionally creative phrases or even single words that might be protectable, but those would be highly fanciful, like supercalifragilisticexpialidocious. And even then, it seems wrong to invent a word for common use but then claim exclusive rights to it.5The word, more than incidentally, is found in most dictionaries. At some point, a phrase is too small a container to hold any originality.
Short phrases, then, are probably best thought of as presumptively unoriginal for copyright purposes. This doesn’t mean that they never can be original, only that the burden shifts to the copyright owner to overcome the presumption of unoriginality. It shouldn’t be enough to point to a small portion of your overall work and say you can enforce that.
The weird thing is that the burden of proving originality is, in fact, on the copyright owner. It’s just that, usually, timely registration of the work will shift the burden to the defendants. But does it make sense that the presumption should apply no matter how small we dissect the work? True, the timely registration of “Playas Gon’ Play” means that the U.S Copyright Office accepted the lyrics as a whole as original, but it doesn’t necessarily follow that the U.S. Copyright Office would’ve registered just “Playas, they gonna play/ And haters, they gonna hate.” Indeed, according to the U.S. Copyright Office’s own regulations, it almost certainly would not have.
Without explicitly saying so, the trial court in the “Shake It Off” case follows this basic logic. The phrase is short, and the plaintiffs didn’t allege anything that would make the court think it’s original. The trial court concluded that, based on what the plaintiff’s put in their complaint, no jury would find the phrase original.
The Ninth Circuit of Appeals reversed in a “memorandum opinion,” which is a very short opinion with very little reasoning. These sorts of opinions are normally reserved for times when the correct ruling is so obvious that it’d be a waste of time to explain it in detail. Since reversals require engaging with the trial court, it’s pretty rare to use a “memorandum opinion” to reverse the trial court. Yet, that’s what happened here.
A Beast of a Burden
The Ninth Circuit’s reasoning is not only truncated but frankly bizarre. It acknowledges that originality is an element of copyright infringement, but it neglects to discuss who must prove it. It focuses instead on who must determine it, the judge or the jury. If it’s a question of fact, the jury determines; if a question of law, then the judge. Originality is a question of fact, so it’s up to a jury to determine it. And courts are normally cautious about taking questions of fact away from the jury.
Yet, courts do so routinely, whenever the question of fact is such that no reasonable jury could conclude otherwise. Since that was the trial court’s reasoning, the Ninth Circuit was required to explain why a jury might’ve found originality in “Playas, they gonna play/ And haters, they gonna hate.”
Further, courts routinely dismiss cases on originality grounds without letting a jury decide the question, especially when the court is filtering out non-protectable elements. This is, really, what’s going on here. The plaintiff is arguing that the songs are similar because the phrases are similar, but courts would normally filter out the phrases as just non-protectable.
Mistaken for Art
Instead of analysis, the Ninth Circuit reaches back to one a pronouncement about copyright law that’s as famous as it is irrelevant:
This is Oliver Wendell Holmes warning judges that they are not in the business of making artistic judgments. In Bleistein, the work at issue was a lithograph advertising poster. The defendants argued that copyright only protected “high” art, not something as common as mere advertising—and certainly not something that could be mechanically reproduced! It was an elitist argument, and Justice Holmes was rejecting that elitism.
The Ninth Circuit mistook this quote as being about the judge-jury distinction:
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.
No, the trial court didn’t do that. The trial court wasn’t judging the artistry of the lyrics, but their originality. The question wasn’t whether the lyrics were good or bad, but whether they were original enough to deserve copyright protection.
In sum, the Ninth Circuit made the following blunders:
- It failed to assign the burden of pleading/proof.
- It failed to even explain how the lyrics might be original.
- It ignored the trial court’s normal gatekeeping role, even on questions of fact.
- It badly misread Bleistein.
Fortunately, this decision cannot be cited for anything. That’s a consequence of being a “memorandum opinion.” So the damage it can do is limited. But not eliminated. Others, feeling that some work or other—not just songs, but novels, illustrations, computer code, useful articles—is similar in some very small part to something they did, will be emboldened to bring baseless copyright suits.
Taylor Swift now faces the longest and most expensive part of the case: discovery. She can afford it, of course. But not all defendants can. One purpose of the sort of motion that the trial court granted (and the Ninth Circuit just rejected) is to cut off weak claims like this before they get too expensive.
I can only hope that the full Ninth Circuit Court of Appeals6Only a three of the judges participated in the decision to reverse the trial court here. takes up this matter and reverse (as it might do in the “Stairway to Heaven” case).
Thanks for reading!