Taylor Swift’s lyrics are too banal to copyright. US Judge Michael W Fitzgerald has ruled in a case of alleged copyright infringement against the singer.
Songwriters Sean Hall and Nathan Butler claimed Swift’s song Shake It Off stole from their tune Playas Gon’ Play. They argued that Swift’s lyric relied on their lyric, “playas, they gonna play, and haters, they gonna hate.”
Fitzgerald was unimpressed. His ruling is golden:
As reflected in Defendants’ RJN, and as Plaintiffs acknowledge, by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters. Although Plaintiffs recognize as much, they allege that they “originated the linguistic combination of playas/players playing along with hatas/haters hating…” Plaintiffs explain that the plethora of prior works that incorporated “the terms ‘playa’ and hater together all revolve about the concept of ‘playa haters’” – a “playa” being “one who is successful at courting women,” and a “playa hater” being “one who is notably jealous of the ‘playas’” success.”… Plaintiffs explain that Playas Gon’ Play “used the terms in the context of a third party, the narrator of a song who is neither a ‘playa’ nor a hater, stating that other people will do what they will and positively affirming that they won’t let the judgment of others affect them.
Isn’t it great.
The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases “playas … gonna play” or “haters … gonna hate,” standing on their own, no more creative than “runners gonna run,” “drummers gonna drum,” or “swimmers gonna swim.” Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of “playas, they gonna play” and “haters, they gonna hate” is sufficiently creative to warrant copyright protection…
Looking at this this case from a potentially-protectable-short-phrase perspective, the lyrics in question are not sufficiently creative to warrant protection… Even if, as Plaintiffs contend, Plaintiffs were the first to employ the concepts of players playing and haters hating for the purpose of expressing “the idea of not concerning yourself with what other people do and think” … the allegedly-infringed lyrics consist of just six relevant words – “playas … gonna play” and “haters … gonna hate.” In order for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here.
As discussed above, players, haters, and player haters had received substantial pop culture attention prior to 2001. It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey. In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.
At the hearing, Plaintiffs’ counsel offered alternative (very clunky) formulations of pairing a noun with its intransitive verb, thereby suggesting that “[noun] gonna [verb]” was creative in itself. While clever, this argument does not persuade. The argument ultimately only makes sense if the use of “gonna” as a contraction of “is going to” is sufficiently creative, or (as discussed above) one can claim creativity in asserting that a type of person acts in accordance with his or her inherent nature. To explicitly state the argument is to see how banal the asserted creativity is.
In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act. In light of the fact that the Court seemingly “has before it all that is necessary to make a comparison of the works in question” … the Court is inclined to grant the Motion without leave to amend. However, out of an abundance of caution, the Court will allow Plaintiffs one opportunity to amend, just in case there are more similarities between Playas Gon’ Play and Shake it Off than Plaintiffs have alleged thus far (which Plaintiffs’ counsel did not suggest at the hearing). If there are not, the Court discourages actual amendment. The more efficient course would be for Plaintiffs to consent to judgment being entered against them so that they may pursue an appeal if they believe that is appropriate.
Judges gotta judge.