Ninth Circuit reinstates copyright infringement claim alleging Taylor Swift’s hit song Shake It Off unlawfully copied plaintiffs’ lyrics “playas, they gonna play,” holding that originality of plaintiffs’ lyrics is question of fact that could not be decided on motion to dismiss.
Plaintiffs Sean Hall and Nathan Butler filed a copyright infringement suit against Taylor Swift, her record companies and music publishers, alleging that Swift’s 2014 hit song Shake It Off illegally copied lyrics from plaintiffs’ song Playas Gon’ Play, released in 2001 and performed by the group 3LW. After the Central District of California dismissed the suit, plaintiffs appealed. On appeal, the Ninth Circuit reversed and remanded the case for further proceedings.
Plaintiffs’ song features the lyrics “Playas, they gonna play” and “Haters, they gonna hate,” while Swift’s Shake It Off features the lyric “Cause the players gonna play, play, play, play, play, and the haters gonna hate, hate, hate, hate, hate.” The district court granted Swift’s motion to dismiss plaintiffs’ complaint, concluding that plaintiffs’ lyrics did not meet the “originality” threshold required for a work to obtain copyright protection. The district court explained that “for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here.”
The Ninth Circuit disagreed, finding that the district court had “constituted itself as the final judge of the worth of an expressive work.” Noting that the originality of a creative work is normally a question of fact, the Ninth Circuit quoted a 1903 U.S. Supreme Court opinion from Justice Holmes, stating in part, “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.” Concluding that neither the complaint nor the matters judicially noticed by the district court – including earlier songs that used “player haters” and related phrases – established that plaintiffs’ Playas Gon’ Play lyrics lacked sufficient originality to warrant copyright protection, the Ninth Circuit therefore reversed the district court’s dismissal and remanded the case for further proceedings.