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Taylor Swift
*photo credit below

Back in 2017, the group 3LW sued Taylor Swift, alleging that her 2014 song, “Shake It Off,” plagiarized lyrics from their 2001 song, “Playas Gon Play.” Specifically, 3LW points to the similarity between their lyric: “Playas, they gonna play / And haters, they gonna hate” with Swift’s somewhat more emphatic “The players gonna play, play, play, play, play. And the haters gonna hate, hate, hate, hate, hate.” On August 8, 2022, Taylor Swift and her lawyers filed a response to the lawsuit, denying its allegations.

In determining whether or not a piece of music  (or really any copyrighted work) has been infringed, a court will look at several factors—similarities between the two works, for instance, and whether or not the infringed content is protectable. In 2021, Swift tried to have the lawsuit thrown out, basically arguing that the allegedly infringing phrase was not protectable by copyright, because “players gonna play” and “haters gonna hate” were common, widely-used phrases. (As you know from Copyright for Creatives, commonly-used phrases are not copyrightable.) A court will also consider whether or not the accused infringer was familiar with the copyrighted work, and whether or not they had the opportunity to hear it.

On that last point, Swift’s answer is this:

I listened to country music almost exclusively, and at the time my biggest influences were country artists like ShaniaTwain, LeeAnn Rimes, FaithHill, The DixieChicks (now known as The Chicks), TimMcGraw, and many others. In my house, we played CDs and rarely played the radio.I do not recall listening to any specific radio stations during that time, but when I listened to radio it was generally country music. I did not watch the MTV show TRL, and I did not go to clubs during this time. My parents limited what I could watch and listen to, and did not permit me to watch TRL until I was about 13 years old.

Basically, she’s saying that she was 12 years old at the time 3LW’s song was being played on the radio and its music video was appearing on MTV’s rotation, and that because she was only allowed to listen to country music she couldn’t possibly have heard it. Good thing music is only available at the time it’s being broadcast on the radio and that there aren’t, like, music archives or websites or CDs or streaming services. So yeah, while she has to show that she didn’t have the opportunity to hear the lyrics she’s accused of stealing, saying that she was too young when the song was released is not her strongest case. She goes on to say, though, that until she was sued she hadn’t heard of 3LW—that’s kinda a burn—and attests that she owns no 3LW recordings (or collections that include 3LW songs), has attended no 3LW concerts, has never seen a 3LW video or heard any 3LW music.)

A stronger case is the one she made in her failed 2021 motions to dismiss the lawsuit: that the phrases in question aren’t copyrightable, because lots of people say them all the time.

The lyrics to Shake It Off also draw from commonly used phrases and comments heard throughout my life. Prior to writing Shake It Off I had heard the phrases players gonna play” and “haters gonna hate” uttered countless times to express the idea that one can or should shrug off negativity. I recall hearing phrases about players play and haters hate stated together by other children while attending school in Wyomissing Hills, and in high school in Hendersonville. These phrases were akin to other commonly used sayings like “don’t hate the playa, hate the game,”  “take a chill pill,” and “say it, don’t spray it.” I drew on those commonly used player and hater phrases in creating the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate,  hate, hate, hate.”

Swift proceeds to list other songs in which versions of the phrases appear, in order to reinforce the idea that they are uncopyrightable and commonly-used. The question that Swift wants the court to focus on is whether “players gonna play” is the equivalent of “take a chill pill.” If it is, there’s no copyright infringement because common phrases can’t be protected. If it’s not, well, then the parties will be talking about damages, and Taylor will have to 

Obviously, 3LW disagrees with this assessment. In their original complaint, they spend a lot of time focused on how the phrases sprang from their own unique creative efforts:

The combination of playas/players playing along with hatas/haters hating may seem like common parlance today, however, in 2001 it was completely original and unique. Indeed, the combination had not been used in popular culture prior to Plaintiffs’ original use.  While previous artists had used terms such as “playa hater(s)” or “playa hater(s) hate…” those do not make Plaintiffs’ phrase any less original. The term “playa hater(s)” was often used as a noun to describe a type of person. As commonly used “playa hater(s)” described just one person, a person who hates playas. Similarly, the term “playa haters hate” or simply “haters hate” was often used to describe a certain thing that the playa hater or the hater actually held with discontent. When used in this way the term described one person, either a playa hater or a hater, who often engaged in hating.

When the appeals court rejected Swift’s motion to dismiss, the judge acknowledged at the time that her case was strong, but that the objective similarities prevented them from granting the motion. So Swift is probably in good shape going into the trial. The question for the court will come down to whether or not “players gonna play” and “haters gonna hate” are sufficiently unique and creative to be protected by copyright, or on the other hand are they common phrases the use of which has rendered them unprotectable. It should be an intesting decision to read. If pressed, I’d predict a Taylor Swift win, basically because while her case for being blissfully unaware of 3LW’s music is a little convenient, her case for the phrases being commonly used is pretty compelling. 

To be continued (unless the parties reach an out of court settlement, which often happens in music infringement cases).

 

SOURCES:

ORIGINAL COMPLAINT: Hall, et al. v Swift, Case 2:17-cv-06882-MWF-AS Document 1 (Central Dist CA, Filed 09/18/17) https://fingfx.thomsonreuters.com/gfx/legaldocs/myvmnajyapr/frankel-hallvswift–complaint.pdf

DISMISSAL OF SWIFT MOTION: Hall, et al. v Swift, Case 2:17-cv-06882-MWF-AS Document 1 (Central Dist CA, Filed 12/09/21) https://www.scribd.com/document/371458324/Hall-v-Swift-Dismissal

SWIFT ANSWER: Hall, et al. v Swift, Case 2:17-cv-06882-MWF-AS Document 134-2 (Central Dist CA, Filed Filed 08/08/22) https://www.scribd.com/document/586223994/Hall-v-Swift

*Photo of Taylor Swift by UltimateWarrior13 under Creative Commons Attribution-Share Alike 4.0 https://creativecommons.org/licenses/by/4.0

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