The IP Law Blog has been tracking the progress of the copyright infringement lawsuit filed against Taylor Swift by Sean Hall and Nathan Butler, the writers of “Playas Gon’ Play” by the girl group 3LW (released in 2001). (See “Taylor Swift Keeps Fighting the ‘Players’ and the ‘Haters’” and “Hall v. Swift: Nothing Original About a Player Hater”.) Hall and Butler allege that Swift’s lyrics in “Shake It Off” (“Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate”) infringe on their song (“Playa, they gonna play / And haters, they gonna hate”).
In July, Swift filed a motion for summary judgment, which alleged that there was no substantial similarity between the songs. Swift’s retained expert musicologist testified that the songs were in different keys, tempos, melodies, and message.
However, on December 9, Judge Michael Fitzgerald of the Central District of California ruled that Swift had not met her burden on summary judgment. Judge Fitzgerald indicated at oral arguments that he believed that the matter should be resolved by a jury, because the copyright issue turned on how the lyrics are read. He also stated that he had a clerk print out the lyrics and place them side by side, which made it “very difficult to say that there isn’t substantial similarity between the lines in the two songs” (as reported by Law 360).
In his order, he also agreed with Hall and Butler that issues as to tempo and melody are irrelevant – the question is the creative expression underlying the lyrics. The order noted that Swift had “made a strong closing argument for a jury,” but did not establish that there were no genuine issues of triable fact. There remained at least some similarities between the lyrics that “do not eliminate the possibility that there is still a genuine dispute as to the potential substantial similarity between the lyrics and their sequential structure as framed by Plaintiffs.”
It appears as though Swift may still make a strong showing before the jury, but she will not be able to shake off this case at the summary judgment stage.
The case is Hall et al. v. Swift et al., Case No. 2:17-cv-06882, in the U.S. District Court for the Central District of California.