Player/Haters May Be Original Afterall

by Scott M. Hervey
The IP Law Blog

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 Taylor 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” were substantially similar to protectable elements of “Playas Gon’ Play.”  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.”

The district court found the allegedly infringed phrases to be “too brief, unoriginal and uncreative to warrant protection under the Copyright Act.”  Hall and Butler appealed the dismissal to the Ninth circuit who then reviewed the case de novo.

On appeal, the 9th Circuit took issue with the basis of the district court’s dismissal based on lack of originality. In noting that originality is a question of fact, the court quoted the late Supreme Court justice Oliver Wendell Holmes, Jr. who once wrote, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”  The 9th Circuit held that when the appeals court concluded that, “for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here,” the district court constituted itself as the final judge of the worth of an expressive work.  Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, the appeals court reversed the district court’s dismissal under Rule 12(b)(6).

In the grand scheme of copyright litigation in the 9th Circuit, this decision will make it much more difficult (if not impossible) for a defendant to put an early end to a frivolous infringement case.  Courts routinely dismiss copyright infringement claims because they fail to show infringement of an original work.  In the 9th Circuit, that’s not going to be possible any longer.  Now, the determination of originality will require costly discovery.