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  • Writer's pictureDavid Baker

Taylor Swift faces trial to “Shake It Off”

In a legal saga that is well into its fifth year, singer Taylor Swift will have to defend her song “Shake It Off” at trial if she hopes to defeat a copyright infringement lawsuit filed against her by competing songwriters Sean Hall and Nathan Butler.

Swift’s attorneys had argued a motion for reconsideration of an earlier ruling against summary judgement in the copyright lawsuit, but the motion was denied by Judge Michael W. Fitzgerald sitting in the U.S. District Court for the Central District of California. Judge Fitzgerald commented, “I still think there’s a genuine issue of material fact in part because of the expert opinion.”

Hall and Butler have accused the singer of lifting the chorus from 3LW’s 2001 “Playas Gon’ Play” in her own hit “Shake It Off.” They originally filed the “Shake It Off” lawsuit in 2017, but Judge Fitzgerald dismissed it in 2018, ruling that the lyrics in question were “too brief, unoriginal and uncreative to warrant protection under the Copyright Act.” However, an appellate court sent the case back to Fitzgerald in 2021 on the grounds that the issue of the lyrics’ originality was an issue of fact that should be decided by a jury, not a judge.

The lyrics at issue in Swift’s song include “Cause the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate.” The similar lines in the song by 3LW, an all-female R&B trio popular in the early 2000s, were “Playas, they gon’ play/And haters, they gonna hate.”

In his 2018 original ruling, the judge said the lyrics under debate were “too brief, unoriginal, and uncreative” to be protected under the Copyright Act.

The lawsuit has also named as defendants music producers Max Martin and Shellback and music publishers Sony and Kobalt, Big Machine Label Group, and Universal Music Group.

The case is set to go to trial January 17, 2023.

Why It Matters. In recent years, several high-profile cases have tested the standards applied to music copyrights in infringement lawsuits and the trend has caused concerns amongst songwriters and performers that artists will face a flood of lawsuits in the future.

For example, after a federal jury concluded that Robin Thicke’s 2013 song “Blurred Lines” had copied elements of Marvin Gaye’s “Got to Give It Up,” musicians and record labels worried that the precedent could have a chilling effect on artists. But in 2020, it seemed the tide had turned after Led Zeppelin prevailed in a copyright suit not long after a federal judge had vacated an earlier decision that Katy Perry’s hit “Dark Horse” had infringed on the copyright of a Christian rap song.

Unfortunately, the standards for testing music copyright are subjective and thereby imperfect and it is unlikely they will be changed by statute any time soon. Consequently, in most cases, music labels and publishers will settle if they think there is any chance they could lose a case.

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