Protecting the Playas

History of the Players

If you’ve heard of pop-phenomenon singer-songwriter TAYLOR SWIFT then you surely have heard of her song “Shake It Off” released back in 2014. The song is certified 9x platinum. Well, the anthem has caused some controversy over the years. Swift is the author of the song and the chorus includes the phrase “the playas gon’ play, play, play, play, play and the haters gon’ hate, hate, hate, hate, hate.” Back in 2001 the short-lived – yet still amazing – all girl group 3LW released a single “Playas Gon’ Play.” This song featured the line “Players they gonna play and haters they gonna hate.” The writers of that song, Sean Hall and Nathan Butler, filed suit in 2017 claiming that Taylor lifted their catchphrase and infringed on the copyright protection of their song. Specifically, these songwriters argue that they coined the phrase “playas gonna play” and “haters gonna hate.” The case was initially dismissed but has now been revived after a successful appeal in the Federal Courts.

History of the Case

Hall and Butler brought this case against Swift in Federal Court in the Central District of California in 2017. In early 2018, the court dismissed the case. In the opinion ordering the dismissal District Judge Michael Fitzgerald specifically highlighted the lack of originality and creativity in the phrases Hall and Butler claimed they originated. Additionally, the judge went on to point out that during the early millennium American pop culture was swamped with player hating, players playing and really just players in general.

The songwriters appealed the dismissal and on appeal in the Ninth Circuit a three-judge panel reversed and revived the suit sending it back to the U.S. District Court. The songwriters look at this as a victory under the argument that the appellate court believes that the complained of phrases are copyrightable. However, Swift and her team of attorneys view the remand of the case to the District Court as simply a procedural issue. The appeals court did not actually find that the songwriters’ case had merit, instead they cited a 1903 Supreme Court Ruling stating, “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 the most narrowest and most obvious limits.” Basically, the appeals court disagrees that the Judge himself should decide if these phrases are copyrightable, but instead believes Hall and Butler’s complaint at least plausibly alleges originality in the disputed phrases so that a jury, who will not necessarily be well versed in creativity and originality as they apply to copyright law, should hear the case. Intellectual property attorneys for both sides will now have their work cut out for them as the case continues, which underscores the importance of hiring competent counsel.

History of Copyright Law

For more in depth background on copyright law be sure to check out this overview. For purposes of this blog only the basics are necessary – a copyright is available to authors of original works including literary, dramatic, musical and artistic works that are “fixed in a tangible medium”– i.e. a song that written down or recorded and not just in your head – which is also original – i.e. it isn’t a repeat of some or all of a song that already exists. While it seems pretty self-explanatory, copyright law is an area of law that is constantly evolving and changing and there are ever changing standards regarding originality that grow out of cases like the case Swift currently faces.

Future of the Playas

The revival of the suit against Swift does not in and of itself mean that Hall and Butler will win their copyright case. There are still a lot of issues and facts to discuss and various nuances of copyright law to apply to the case at hand. However, it’s hard to imagine that a jury will find that the mere copying of phrases common in everyday language, or used in songs before, during, and after Swift’s 2001 single, constitutes infringement. Then again, juries are unpredictable so the work undertaken by the attorneys leading up to trial will be important for both sides.

Stay tuned for the updates as this case continues, but in the meantime for more information on how to properly protect your copyright, enforce your copyright in court, defend yourself against someone suing you for copyright infringement, or for any other intellectual property needs, contact us at (561) 953-9300 or through our website form to speak with one of our experienced attorneys.