Last Friday, a California federal judge, Judge Fitzgerald, handed a win to Taylor Swift and her team when he dismissed a copyright suit against the singer with prejudice. This follows from a ruling in mid-February, where the judge granted a motion to dismiss for Swift’s team, but giving plaintiffs Sean Hall and Nathan Butler one chance to amend their complaint by February 26th. When the plaintiffs chose not to amend the complaint and instead asked the judge to dismiss the suit without prejudice, the judge granted Swift’s request to dismiss the case with prejudice.
The core issue of the case is to what extent can the lyrics of a song be protectable. The plaintiffs, Hall and Butler, wrote a song in 2001 called “Playas’ Gon’ Play” that was a part of an album that got platinum certification. The complaint does not make any allegation of Swift’s team copying the underlying musical composition. Instead, the plaintiffs alleged that the lyrics “Playas, they gonna play/ And Haters, they gonna hate” in the song “Playas’ Gon’ Play” is sufficiently similar to Swift’s lyrics, “[T]he players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate” from her 2014 hit “Shake It Off.” The plaintiffs argued that despite other artists using phrases similar to the one at issue in this case, such as “playa haters hate” or “haters hate”, their lyrical combination of “playas, they gonna play/ And Haters, they gonna hate” was original unique work and thus deserved protection.
It is not disputed that Hall and Bulter owned the song, or if Taylor Swift and her team had access to the song. Nevertheless, the judge ruled that the lyrics in this case do not get protection under the Copyright Act. First, Judge Fitzgerald found that by 2001, American pop culture had already pushed the concepts of players and haters to the forefront, such that they were not unique creations but rather general archetypes of characters. Secondly, he said “the concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” Thus, because players by their very definition are “going to play”, stating that they will be “playing” in a song lacks the originality and creativity required for copyright protection. Nevertheless, the judge ruled that the plaintiffs get one more chance to amend the complaints, before dismissing the case.
When the songwriters refused to amend the complaint, Swift’s team asked the judge to dismiss the case with prejudice, arguing that a voluntary dismissal or a dismissal without prejudice would allow for the plaintiffs to refile or appeal the case. Fitzgerald agreed and dismissed the case with prejudice.
Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).