In copyright infringement litigation targeting Taylor Swift’s hit song “Shake It Off,” district court holds that questions of fact remain as to whether lyrics were sufficiently original and substantially similar to plaintiffs’ lyrics, denying summary judgment motion filed by Swift and others.
In 2017, plaintiffs Nathan Butler and Sean Hall, co-authors and copyright owners of the musical composition for “Playas Gon’ Play” (made famous by the early 2000s group 3LW), brought suit for copyright infringement alleging that “Shake It Off,” the hit single co-authored by Taylor Swift, Karl Martin Sandberg and Karl Johan, infringed the composition for “Playas” based on certain alleged lyrical and structural similarities. The dispute centered on the purported similarities in the songs’ choruses: Among other things, “Playas” featured the lyrics “Playas, they gonna play” and “Haters, they gonna hate,” while “Shake It Off” featured the lyrics “Cause the players gonna play, play, play, play, play, and the haters gonna hate, hate, hate, hate, hate.”
After the district court initially granted defendants’ motion to dismiss, the Ninth Circuit reversed, finding that the allegations in the complaint had satisfied the “famously low bar” of originality necessary to prevail on an infringement claim. (Read our summary of the Ninth Circuit’s decision here.) On remand, defendants moved to dismiss again, arguing that the purportedly unprotected ideas underlying the allegedly copied words merged with those words, thereby rendering them unprotectable. The district court denied that motion. (Read our summary of the district court’s decision on remand here.)
The parties proceeded to discovery, following which defendants moved for summary judgment. The court denied that motion as well. Viewing the record in the light most favorable to the plaintiffs, the court held that (1) plaintiffs sufficiently demonstrated originality in the selection and arrangement of the “Playas” lyrics, and (2) genuine issues of triable fact remained as to substantial similarity.
First, the district court took up defendants’ argument that plaintiffs’ selection and arrangement of the underlying lyrics in “Playas” lacked originality and was thus unprotectable. Although plaintiffs acknowledged that the concept for the chorus of “Playas” was firmly rooted in pop culture at the time the song was released, they argued that the combination of the words in question was an original work that was then copied in the chorus of “Shake.” As to this point, the court observed that defendants were, in effect, seeking reconsideration of the Ninth Circuit’s ruling as to the protectable selection and arrangement of lyrics, stating, “It’s not as if the lyrics in the record now are materially different than what the Complaint alleges.” Accordingly, it held that plaintiffs had sufficiently demonstrated originality in the lyrics, regardless of whether the underlying phrases are in the public domain.
Second, the district court rejected defendants’ argument that plaintiffs could not demonstrate substantial similarity between “Playas” and “Shake” as a matter of law. Plaintiffs, relying on the opinion of their expert witness, argued that the chorus of “Shake” copied at least seven different elements from “Playas,” including “1) Shake’s combination of tautological phrases; 2) parallel lyrics; and 3) grammatical model ‘Xers gonna X.’” Although defendants’ experts refuted the implication that there are substantial similarities, analyzing factors such harmony and melody, the court stated that it was not inclined to “overly credit their opinions here.” As the court emphasized, the Ninth Circuit has acknowledged that it has “never announced a uniform set of factors” for analyzing musical compositions under the extrinsic test. Ultimately, the court declined to resolve what it described as “essentially simply a battle of the experts.” It held that although the works contained noticeable differences, there were sufficient objective similarities such that the court could not determine as a matter of law that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement or poetic structure between the two works.