(Reuters) - There is no disputing that Taylor Swift’s absolutely irresistible 2014 pop song “Shake It Off” contains some of the same words and phrases as a lesser-known 2001 song, “Playas Gon’ Play” by the girl group 3LW.
The chorus of 3LW’s song, a modest hit, says, “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.” Swift’s megahit, released more than 10 years later, included the lyrics: “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.”
In 2017, the songwriters for “Playas Gon’ Play” sued Swift and her collaborators for copyright infringement in federal district court in Los Angeles, alleging that the lyrics of “Shake It Off” about playas and haters were too similar to the phrases in the older song. The suit was a bust: In February, U.S. District Judge Michael Fitzgerald of Los Angeles dismissed the case.
The judge found that the lyrics at issue were short phrases, which aren’t usually entitled to copyright protection unless they’re particularly original or creative. These weren’t, he said. Pop culture was already full of references to playas and haters by the time the 3LW song came out, and it wasn’t sufficiently original, for copyright purposes, to wed the nouns to verbs and place observations in the voice of a narrator. “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal,” the judge wrote. “Players, haters, and player haters had received substantial pop culture attention prior to 2001. It is hardly surprising that plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters….In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”
The plaintiffs, represented by Gerard Fox Law, have appealed the dismissal to the 9th U.S. Circuit Court of Appeals, where briefing will begin this summer. In the meantime, Swift’s lawyers from the Law Offices of Peter J. Anderson moved for about $75,000 in attorneys’ fees. Citing the U.S. Supreme Court’s 2016 ruling in Kirtsaeng v. John Wiley (136 S.Ct. 1979) and 1994’s Fogerty v. Fantasy (114 S.Ct. 1023), Team Tay said its win advanced the goals of copyright law by shutting down the plaintiffs’ unjustifiably claimed monopoly on everyday phrases – and killing a $30 million settlement demand, to boot.
Judge Fitzgerald denied the motion Monday, in a thoughtful opinion that shows why it’s not easy to recover attorneys’ fees even when you win big in copyright cases. The judge said the litigation hadn’t been frivolous or objectively unreasonable, no matter how early in the proceedings he tossed the case. The writers of the 3LW song showed, for instance, that it’s become common in the music industry for songwriters to pay licensing fees for snippets of lyrics like the short phrases Taylor Swift was accused of infringing. Nor was it clear, he said, that “playas gonna play” and “haters gonna hate” were insufficiently creative and original to warrant copyright protection.
“Although the court disagreed with plaintiffs, their litigation position was neither frivolous nor objectively unreasonable,” Judge Fitzgerald wrote. “The purposes of the Copyright Act – namely, encouraging and rewarding creative endeavors – would not be well-served by a fee award.” In fact, the judge said, if he were faced with the choice of awarding fees to Swift’s lawyers or lawyers for the 3LW songwriters, he’d give the money to the 3LW team “without hesitation.”
And someday, he said, Taylor Swift might look back and thank him for a decision that will allow copyright holders to continue to make money from other artists willing to pay to use their lyrical turns of phrase. Had he sided with Swift on the fee issue, he said, copyright law might have moved away from “encouraging and rewarding” songwriters for creating memorable lyrics.
“There are very few recording artists, if any, who have a greater interest than Ms. Swift in a robust regime of copyright law,” Judge Fitzgerald wrote. “Be careful what you wish for.”
Swift’s lawyer, Peter Anderson, declined to comment. Lauren Greene, a lawyer for the 3LW songwriters, said Judge Fitzgerald’s opinion shows this case was well within the bounds of reasonableness. “There are quite a few copyright cases that are actually frivolous,” she said. “That is not the case here.”
The Swift ruling made me curious about fee awards in copyright cases in the post-Kirtsaeng era, which arguably made it tougher to justify fee awards in cases that were not obviously frivolous. I did an entirely not-exhaustive review of the first 11 cases Westlaw listed as citing the Supreme Court’s 2016 ruling, including the remanded Kirtsaeng case itself, in which the trial judge declined to award fees to the Thai plaintiff accused of infringement for reselling textbooks overseas.
Of the other 10 cases, fees were awarded in five and denied in five, suggesting that judges are engaged in serious analysis of the good faith of copyright challenges. Which is about all that content creators can ask for.