Mega-pop-star Taylor Swift finds herself going to trial for copyright infringement over two phrases from her major hit “Shake It Off”: “players gonna play” and “haters gonna hate.”
The case has climbed the judicial ladder for several years, starting with the lawsuit brought by Sean Hall and Nathan Butler in 2017. They wrote the song “Playas Gon’ Play” for the girl group 3LW in 2001. Swift released “Shake It Off” in 2014.
Below, we will look into the details of this copyright case and factors that influence how it might play out.
Extrinsic vs. Intrinsic Tests
Swift argued that the phrases “players gonna play” and “haters gonna hate” are too generic to be copyrightable. Her lawyer labeled them public domain. The District Court initially agreed with her and dismissed the case.
But the Ninth Circuit Court subjected the songs to the first step in a copyright infringement case, the extrinsic test. How does this work?
The Ninth Court evaluates copyright infringement based on two tests, extrinsic and intrinsic. Extrinsic looks at the superficial similarities between pieces – basically, the aspects that could be copyrighted. If the expressive works showcase enough similarity, the Ninth Circuit Court passes the case to a jury trial.
That jury will then conduct an intrinsic test, which examines how similar the works are in “feel.” Were they made with the same intention? Are they appealing to the same audience? Does one intend to latch onto the other’s already established expressive value?
As you might guess, determining intrinsic overlap is more slippery than extrinsic. In the music industry, some have complained that everyday jurors do not have enough music knowledge to determine this outcome.
Geography Matters: the Ninth Circuit vs. the Second Circuit
We like to think that all courts are created equal but, in fact, a court’s location does have an effect on its conduct and opinions. Take the opposing coastal cities of the Ninth and Second Circuits: the Ninth in LA and the Second in NY.
In NY, center of publishing and general media, defendants have a stronger chance of gaining a pretrial dismissal. They would request a summary judgment from the judge. If no substantial similarity is evident, the judge will dismiss.
In LA, where entertainment reigns, the plaintiff seeking copyright infringement damages has more power. Why? Because the Ninth Circuit court gives the power of determining substantial similarity to the jury. The defendant has an uphill battle to prove much more dissimilarity to dissuade the need for a trial.
How Is This Trial Likely to Go?
While many people might settle with the plaintiff rather than endure a trial, Swift has the resources to see it through. And, as some intellectual property litigators have discussed, Swift might need to do so in order to protect her reputation.
Swift is lauded for doing much of her own songwriting. Imagine the harm incurred if her fans heard she lost a lawsuit over plagiarism of lyrics.
As for wider consequences, there are at least two camps in this regard. Some view the suit as chilling to artists who might use phrases generally considered public domain. It brings that whole category of copyright-free material into question. Others view Swift’s lyrics as appropriation, and they see the lawsuit as a form of justice.
Perhaps it is a bit of both. Either way, it’s now left for a jury to decide.