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January 12, 2022

In August 2014, Taylor Swift released her hit song “Shake It Off,” which has now been viewed on YouTube more than three billion times. However, although this song would go on to break records and garner critical acclaim, it also subjected Swift to a potential trial.

In 2017, songwriters Sean Hall and Nathan Butler filed a copyright infringement suit against Swift, claiming that “Shake It Off” included lyrics that infringed upon their 2001 song “Playas Gon’ Play.” The specific phrases that Hall and Butler claim were infringed are “players gonna play” and “haters gonna hate.”

Initially, the judge hearing the case, Judge Michael Fitzgerald of the Central District of California, agreed with Swift that the phrases were not original enough to be protected under copyright law and dismissed the case. However, Hall and Butler appealed this decision and the Ninth Circuit reversed and remanded Judge Fitzgerald’s decision, concluding that it was up to a jury not a judge to decide whether these phrases were original enough to be protected.

Since being sent back to him, Judge Fitzgerald has changed his tune. On December 9, 2021, Judge Fitzgerald decided that there were sufficient “similarities in word usage and sequence/structure” between “Shake It Off” and “Playas Gon’ Play” that a reasonable juror could find substantial similarity between the two works. Due to this, the case appeared as though it was headed for trial.

Rather than simply sit back and accept this fate, Swift and her legal team filed a new motion, imploring Judge Fitzgerald to reconsider his decision to move the case to trial. Their renewed argument revolved around their belief that Judge Fitzgerald’s decision was “unprecedented” and went against all prior decisions made within the Ninth Circuit.

As a little bit of legal background, within the Ninth Circuit courts review copyright infringement claims under a two-part test. Under this test, the plaintiff must prove a substantial similarity under both the “extrinsic” test and the “intrinsic” test. The extrinsic test is an objective approach which “involves an in-depth analysis of works” and is often “where judges filter the material that isn’t covered by copyrights.” On the other hand, an intrinsic test is a subjective approach that asks the judge to take into account the “total concept and feel” of the work to decide if they are substantially similar. For a motion for summary judgment, which was the stage that Swift’s case is at, “only the extrinsic test is important because the subjective question whether works are intrinsically similar must be left to the jury.” With this understanding, we turn back to Swift’s motion requesting Judge Fitzgerald to reconsider. Swift’s legal team labeled Judge Fitzgerald’s decision as “unprecedented” because they believe the judge did not analyze the extrinsic part of the test. Had he done so, Swift’s team argues, Judge Fitzgerald would have concluded that the phrases that Hall and Butler were claiming were infringed are in the public domain and “does not constitute a potentially protectable selection and arrangement.”

Although Swift claims that the phrases allegedly infringed are “two short public domain statements,” it would likely not be very persuasive to argue that since the phrases are short, they do not deserve protection. After all, Swift herself decided to claim protection on the phrase “this sick beat” which is the same amount of words as “haters gonna hate” and “players gonna hate.”

For this reason, timing will be crucial for Judge Fitzgerald’s decision on Swift’s renewed motion.

So, instead, Swift’s argument centers around whether the phrases were within the public domain and, thus, not warranted copyright protection. For this reason, timing will be crucial for Judge Fitzgerald’s decision on Swift’s renewed motion. Were the phrases at issue within the domain when the Plaintiffs released “Playas Gon’ Play” in 2001? If the phrases at issue were within the public domain when Hall and Butler released “Playas Gon’ Play,” then Judge Fitzgerald (or the Ninth Circuit if his decision is appealed) may decide that the phrases are not protectable under the extrinsic test. If they were not within the public domain in 2001, Swift and her team may be faced with another decision: to settle or to fight.

Even though many entertainment law cases inevitably settle, this case may go beyond a simple settlement amount. The reason that Swift CAN pay for a settlement may be the very reason why she will not settle. Just as she has the financial means to settle, Swift also has the financial means to fight this case all the way through trial. For her, this may come down to not wanting to be seen as an artist in the realm of Robin Thicke and Bruno Mars, both of which settled infringement claims. Rather, Swift may view this lawsuit as a challenge to her integrity and honor as an artist and a singer-songwriter. For this reason, although my money would be on the two sides settling for an undisclosed amount, Swift may decide to see this through until the bitter end. But, before we get to that point, we will see what Judge Fitzgerald decides on the new motion.

Jake Schindler

Jake graduated from the University of Tennessee—Knoxville in 2015. After graduating, he moved to Washington, D.C. for five years and worked as a paralegal at two different law firms before deciding that the law school route was right for him. In law school, Jake is a member of JOLT, the Holderness Moot Court Sports Law Team, and participates in various probono projects.