In the perpetual pop culture war between players and haters, U.S. District Judge Michael W. Fitzgerald of California might be expected to remain neutral. But on Tuesday he took a side in a skirmish over the lyrics to the Taylor Swift hit “Shake It Off.”
In an order peppered with judicial shade, Fitzgerald threw out a lawsuit claiming Swift lifted the lyrics to her 2014 track from the 2001 song “Playas Gon’ Play” by the girl group 3LW.
Under copyright law, a song or portion of a song is only subject to protection if it goes beyond what courts refer to as “the banal or trivial.” Short phrases and cliches generally don’t qualify because they lack the originality and creativity required by the Copyright Act.
The case, brought last year by “Playas Gon’ Play” songwriters Sean Hall and Nathan Butler, boiled down to whether the lyrics “players gonna play” and “haters gonna hate,” featured in both songs, were in fact creative and original enough to warrant copyright protection.
Fitzgerald said they weren’t.
“The concept of actors acting in accordance with their essential nature is not at all creative; it is banal,” the judge wrote in his 16-page order. “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.’ ”
Fitzgerald noted that Swift’s legal team had provided a list of songs that came out before 2001 whose lyrics involved the mention of players and haters doing what they do best. These included the “Player’s Ball” by Outkast from 1993, “Playa Hater” by The Notorious B.I.G. from 1997 and “Dreams” by Fleetwood Mac from 1977.
The plaintiffs acknowledged that the concepts of players playing and haters hating “were already firmly rooted in pop culture” when the song was released, according to the order. But they alleged that the combination of players playing along with haters hating was original and unique at the time. Their lawsuit said Swift had copied “roughly 20%” of her hit from 3LW.
The judge was unpersuaded. The plaintiffs’ arguments against Swift’s request to dismiss the case were “very clunky,” he said. “In short,” his ruling read, “combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough” to receive copyright protection.
Out of an abundance of caution, the judge said he would give the plaintiffs one opportunity to amend their complaint, just in case there were other similarities lurking in the songs that they hadn’t identified yet. But a more appropriate course of action, he said, might be for the 3LW songwriters to accept judgment against them and move on to an appeal.
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