On October 28, 2019, the Ninth Circuit of California reversed the dismissal of a copyright infringement lawsuit against Taylor Swift in connection with the song “Shake it off”. Swift and the songwriters of “Shake it off” were accused of copying the lyrics from the song “Players Gon’ Play” by girl group “3LW,” written by songwriters Sean Hall and Nathan Butler. The 3LW song features the lines “playas, they gonna play” and “haters, they gonna hate.” Swift’s song features the line “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Last year, Judge Michael Fitzgerald, of the United States District Court of the Central District of California, ruled that the lyrics in question were commonplace and were not original enough to give rise to a copyright infringement lawsuit. In reversing the District Court, the 9th Circuit relied upon a 1903 opinion in a case called Bleistein v. Donaldson Lithographing Co., which admonished judges against weighing in on original works of art.
The court decided that a judge should not have final judgement over the originality of the song but instead should leave it up to a jury.
This is an important decision and a major victory for artists/creators rights. It also indicates, in light of the recent en banc hearing in front of 11 justices of the 9th Circuit on September 23, 2019, in the Led Zeppelin case, that the 9th Circuit is taking these rights very seriously.
Perhaps this is a good omen that courts will give artists/creators a fair shake; as reflected in “Death of Copyright 3: The Awakening” by Steven Lowe (Los Angeles Lawyer 2018), artists/ creators are generally unsuccessful in their attempts to seek redress in the courts for copyright infringement.
Hall and Butler are represented by Gerard P. Fox, Lauren M. Greene and Marina V. Bogorad of Gerard Fox Law PC.
Swift and the other defendants are represented by Peter J. Anderson of Davis Wright Tremaine LLP.
The suit is Sean Hall et al. v. Taylor Swift et al., case number 18-55426, at the U.S. Court of Appeals for the Ninth Circuit.