By Scott Hervey
“Cause the players gonna play, play, play, play, play
And the haters gonna hate, hate, hate, hate, hate
Baby I’m just gonna shake, shake, shake, shake, shake
Shake it off / Shake it off
Heartbreakers gonna break, break, break, break, break
And the fakers gonna fake, fake, fake, fake, fake
Baby I’m just gonna shake, shake, shake, shake, shake
Shake it off / Shake it off.”
In the early 2000’s, an all girl band called 3LW performed a song called Playas Gon’ Play, which was written by Sean Hall and Nathan Butler. Playas Gon’ Play was initially released in May, 2001 and rose to number 81 on the Billboard’s Hot 100 chart. The album on which Playas Gon’ Play appeared sold over One Million copies and 3LW performed the song numerous times on national television. The chorus of Playas Gon’ Play consists of the following lyrics:
Playas, they gonna play
And haters, they gonna hate
Ballers, they gonna ball
Shot callers, they gonna call
That ain’t got nothin’ to do
With me and you
That’s the way it is
That’s the way it is.
Hall and Butler sued Swift, her co-authors on Shake It Off, as well as various other parties related to Shake It Off and the album on which it was included. Hall and Butler alleged a single claim of copyright infringement premised upon the lyrical similarities between Playas Gon’ Play and Shake It Off.
On Swift’s motion to dismiss, the sole issue before the court was whether any elements of Shake It Off are substantially similar to protectable elements of Playas Gon’ Play. All federal courts falling under the 9th Circuit employ the extrinsic vs intrinsic test in determining likelihood of confusion. The “extrinsic test” is an objective comparison of specific expressive elements. The “intrinsic test” is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works. The 9th Circuit has not established a set of factors to consider when analyzing musical compositions under the extrinsic test. So long as the plaintiff can demonstrate that one or more musical elements such as the rhythm, pitch, cadence, melody, tempo, harmony or lyrics are similar to protected elements of the copyrighted work and that such similarity was “substantial”, the extrinsic test is satisfied.
Unlike most music cases, here the court was not called upon to consider the relevant songs’ sound. Here the court was to focus on similarities between portions of the songs’ lyrics. The court noted that the only obvious similarities between the two works is that Playas Gon’ Play contains the lyrics “Playas, they gonna play / And haters, they gonna hate,” and Shake It Off contains the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.” Before considering whether this satisfied substantial similarity, the court considered whether the allegedly infringed elements of Hall and Butler’s song – the lyrics “Playas, they gonna play / And haters, they gonna hate” are eligible for protection under the Copyright Act.
The Copyright Act protects “original” works of authorship fixed in any tangible medium of expression. The court noted that songs or a portion of a song “must be sufficiently original and creative to warrant copyright protection.” Originality signifies “that the work originates in the author rather than having been copied from past sources” and creativity signifies “that the work has a spark that goes beyond the banal or trivial.”
Swift and the other defendants argued that the phrase “Playas, they gonna play/And haters, they gonna hate” is not entitled to copyright protection because it is merely a short phrase and short phrases are not afforded protection under the Copyright Act. However, on occasion courts have recognized that there may be exceptions to the general rule that short phrases are not protectable where a short phrase is sufficiently creative. For example, in the 1979 Federal district case, Brilliant v. W.B. Productions, Inc., in finding the two phrases, “I may not be totally perfect, but parts of me are excellent” and “I have abandoned my search for truth and am now looking for a good fantasy” protectable under copyright, the court noted these phrases were concise, clever and culturally relevant, thereby satisfying the “creative” component of originality. Hall and Butler argued that their short phrase – “Playas, they gonna play/And haters, they gonna hate” – is sufficiently creative to warrant protection.
In an effort to show that the phrase in question was not sufficiently creative to warrant protection under the Copyright Act, Swift introduced evidence showing the use of the words “Player” and “Hater” in numerous songs and other creative works. This evidence, the court said, established that in 2001, American culture “was heavily steeped in the concept of players, haters and player haters.” As for Hall and Butler’s argument that they “originated the linguistic combination of [players playing and haters hating]” the court said that the concept of people behaving in accordance with their essential nature is not at all creative.
The court found the allegedly infringed phrases to be “too brief, unoriginal and uncreative to warrant protection under the Copyright Act” and provided Hall and Butler leave to amend their complaint “just in case there ar