Taylor Swift Keeps Fighting the ‘Players’ and the ‘Haters’

by Jessica R. Corpuz
The IP Law Blog

In December 2019, Scott Hervey wrote about the copyright infringement lawsuit filed against Taylor Swift by the writers of the song “Playas Gon’ Play.”  The song was released by the girl group 3LW in 2001 and included the lyrics “Playa, they gonna play / And haters, they gonna hate.”  In 2014, Taylor Swift released “Shake It Off,” which included the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.”

Swift was originally successful on a motion to dismiss the infringement claim.  The district court held that the lyrics were “too brief, unoriginal and uncreative to warrant protection under the Copyright Act.”  However, the writers of “Playas Gon’ Play” appealed, and the 9th Circuit reversed the district court’s ruling.  Swift found herself back in court doing discovery to determine the creative worth of the lyrics.  As Scott Hervey noted, the 9th Circuit’s ruling made it more difficult to obtain dismissal of a frivolous infringement case and gave copyright trolls the ability to force defendants into expensive discovery.

On July 19, Swift filed a motion for summary judgment on the substantive issue of the similarity between the songs.  A plaintiff alleging copyright infringement must demonstrate that there was “unlawful appropriation” by showing that the two works are substantially similar.  The court will apply an extrinsic test comparing the objective similarities of expressive elements in the two works.  There is only liability if the specific protectible elements of “Shake It Off” are substantially similar to “Playas Gon’ Play.”

Both sides have done substantial discovery and have retained musicologists as expert witnesses to parse the songs.  Swift’s expert musicologist claims that there are no structural similarities between the two songs.  They are in different keys, have vastly different tempos (93 beats per minute for “Playas Gon’ Play” versus 160 beats per minute for “Shake It Off”), and entirely different melodies.  In addition, “Playas Gon’ Play” is about breaking up with a romantic partner while “Shake It Off” is about the singer shaking off criticism.

The writers of “Playas Gon’ Play” face an apparent uphill battle to demonstrate that there is in fact substantial similarity between these songs.  The motion is set for hearing on August 30, 2021.

The case is Sean Hall et al. v. Taylor Swift et al., Case No. 2:17-cv-06882, U.S. District Court for the Central District of California.