'Players' and 'haters' (Taylor's version) headed for copyright trial

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Singer Taylor Swift poses as she arrives to attend the "All Too Well" New York Premiere in New York City, New York, U.S., November 12, 2021. REUTERS/Jeenah Moon

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(Reuters) - Taylor Swift will need to convince a jury that she wasn’t copying lyrics from Playas Gon’ Play, a 2001 song by the girl group 3LW, in her 2014 megahit Shake It Off, after a federal judge in Los Angeles ruled on Thursday that she can't shut down a copyright infringement suit.

You may pause here, if you must, for the obvious “shake it off” wordplay. I’m declining the opportunity.

Playas songwriters Sean Hall and Nathan Butler alleged in a 2017 complaint that they were the first artists to combine the phrases “Playas, they gonna play / And haters, they gonna hate”. They asserted that their phrasing is entitled to copyright protection, and that Swift infringed their rights in the chorus of Shake It Off. (As you surely remember, Swift sang, "The players gonna play, play, play, play, play. And the haters gonna hate, hate, hate, hate, hate.")

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Hall and Butler also claimed that Swift copied their trick of adding two additional phrases to underline the point that “people should stay true to themselves despite what others may say or do.” Their 2001 song said “Ballers, they gonna ball” and “Shot callers, they gonna call.” Swift's Shake It Off said, "Heartbreakers gonna break, break, break, break, break. And the fakers gonna fake, fake, fake, fake, fake."

The Playas writers' lawsuit alleged copyright infringement of both the six-word “players gonna play, haters gonna hate” phrase and the four-part lyrical sequence of similar phrases.

A Swift representative did not provide a statement in response to my query about the court's ruling on Thursday.

U.S. District Judge Michael Fitzgerald initially dismissed the suit in 2018, holding that Hall and Butler failed to show their lyrics were sufficiently original and creative to be the basis of a copyright claim, given that “players, haters, and player haters [have] received substantial pop culture attention.” The 9th U.S. Circuit Court of Appeals revived the suit in a terse 2019 decision that said Hall and Butler had plausibly alleged the originality of their lyrics. In 2020, with the 9th Circuit ruling in mind, Fitzgerald denied Swift’s renewed motion to dismiss.

Swift’s lawyers at Davis Wright Tremaine brought in a dream team of musicology and literary experts – including a linguistics professor who is the director of Harvard’s Hiphop Archive and Research Institute – for summary judgment briefing. Their July 2021 filing argued that Swift’s song is not similar enough to the Hall and Butler song to constitute copying.

Even Hall and Butler, the brief argued, conceded that “Players gonna play” and “haters gonna hate” are public domain phrases, so Swift can't be liable merely for using the words. And because her song differs markedly from the 2001 Playas song in structure, storytelling and musical elements, the motion said, Hall and Butler can't show infringement.

As an aside, there's no better way to kill the effervescent joy of pop music than to analyze songs in a summary judgment motion. Who knew, for instance, that “players gonna play” and “haters gonna hate” are prime examples of “tautophrases”?

Here’s why, according to Swift’s brief, the lyrical parallels between Shake It Off and the 2001 piece by Hall and Butler are not copyright infringement: “Playas’ four tautophrases are in an unbroken sequence, while Shake It Off has two sets of two tautophrases each, separated by three lines of lyrics that do not appear in Playas. As a result, the only similarity is the idea of multiple tautophrases and that idea also is unprotected.”

Hall and Butler’s brief opposing summary judgment said Swift’s arguments about song structure and storytelling were obfuscation: She and her co-defendants copied Hall and Butler's lyrics to express the same point that people should shrug off critics.

In Thursday’s ruling, Fitzgerald agreed that a jury must decide whether Shake It Off is substantially similar to Playas. Precedent from the 9th Circuit, the judge said, discourages such fact-finding by courts. And here, he ruled, “There are enough objective similarities amongst the works to imply that the court cannot presently determine that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement, or poetic structure.”

The judge did say that Swift and her lawyers had made out “a strong closing argument for a jury,” and that defense experts had offered “persuasive arguments” about musical and literary distinctions between Playas and Shake It Off. Swift lawyers Peter Anderson and Arleen Fernandez of Davis Wright didn’t respond to my query on the decision, but they and Swift can take solace from another tautophrase: It ain’t over til it’s over.

Hall and Butler are represented by Marina Bogorad of Gerard Fox Law, who told me, with a laugh, that she had to look up the word "tautophrase" before writing her brief opposing Swift’s summary judgment motion. “You didn’t need the army of experts they introduced to see through their argument,” she said. “It’s just so obvious. The words are so similar.”

Bogorad said her side still needs to obtain discovery about Swift’s exposure to the song her clients wrote. Playas, which made the Billboard charts in 2001, aired on MTV’s Total Request Live, and Swift was known to be a TRL fan, so Bogorad said there’s at least circumstantial evidence that Swift heard the song.

Borograd said she’s hopeful that Thursday’s ruling will goose settlement discussions with Swift’s team. But if the case does go to trial, she said, she intends to argue that Swift and her co-defendants engaged in cultural appropriation. “This is a white artist taking something from Black culture for her own enrichment,” Borograd said. “She just took artistic choices my clients made and lifted them without authorization.”

Fitzgerald has scheduled a trial date of August 30, 2022.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.