Ninth Circuit Revives Copyright Spat Over Taylor Swift’s ‘Shake It Off’

In this Feb. 4, 2017, file photo, Taylor Swift performs at the DIRECTV NOW Super Saturday Night Concert in Houston, Texas. (Photo by John Salangsang/Invision/AP, File)

(CN) – Pop superstar Taylor Swift can’t shake off a copyright lawsuit over her 2014 hit “Shake It Off,” which the Ninth Circuit revived Monday.

Songwriters Sean Hall and Nathan Butler wrote the song “Playas Gon’ Play” for the group 3 Little Women (3LW) in 2001. They claim Swift and her co-writers lifted a six-word phrase and four-part lyrical sequence for her hit song, which debuted at number one on the Billboard Hot 100 in September 2014.

Hall and Butler say Swift’s lyrics, “’Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate,” are similar to their lyrics, “The playas gon’ play / Them haters gonna hate.”

They say 20% of “Shake It Off,” which has sold 9 million copies, comes from their song.

U.S. District Judge Michael Fitzgerald dismissed the case in April 2018, rejecting Hall and Butler had “originated the linguistic combination of playas/players playing along with hatas/haters hating” and finding the lyrics at issue were too brief, unoriginal and uncreative to warrant protection under the Copyright Act.

But on Monday, a three-judge Ninth Circuit panel reversed and remanded the dismissal. The panel found “originality, as we have recognized, is normally a question of fact” that requires more exploration by Fitzgerald.

“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,” the 3-page unsigned order states. “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.”

U.S. Circuit Judges Andrew Hurwitz and John Owens, both Barack Obama appointees, and Donald Trump appointee Kenneth Lee made up the panel.

We are happy the court unanimously sided with us,” Hall said in a statement provided by his attorney Marina Bogorad. “We simply refuse to sit still and have our creative work be culturally appropriated as if it never existed. This case is giving voice to all of those creatives who can’t afford to stand up and protect their work in the face of well financed Goliaths.

 Swift’s attorneys did not immediately respond for comment Monday.

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