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  • Writer's pictureDavid Baker

Taylor Swift tries to just “Shake It Off”

Defending a copyright lawsuit filed by lyricists Sean Hall and Nathan Butler, pop recording artist Taylor Swift has asked a federal court judge to reconsider his denial of her motion for summary judgment on the claim that she ripped off the lyrics from their 2001 song “Playas Gon’ Play.”

Hall and Butler filed suit against Swift in 2017 alleging that the lyrics from her 2014 hit “Shake It Off” were lifted from the song they wrote for the group 3LW. Swift’s song spent four weeks atop the Billboard Hot 100 chart and included the lyrics, "Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate," whereas Hall and Butler's song featured the phrases, "playas, they gonna play" and "haters, they gonna hate."

Swift’s attorneys had asked U.S. District Judge Michael W. Fitzgerald to grant summary judgment in favor of their client, but in a ruling on December 9, the judge denied Swift's motion and allowed the case to proceed because he had concluded that there is a "genuine dispute as to the potential substantial similarity between the lyrics and their sequential structure."

In Swift’s December 23 motion for reconsideration, Swift's attorney, Peter Anderson, called the judge's decision something "no other court has done," and asked that the ruling be "revisited." Anderson went on to argue that the judge's decision did not include an extrinsic test in copyright law, which distinguishes between the protected and unprotected material in a person's work.

The motion stated that under the extrinsic test, the only similarity between the songs is that "both works use versions of two short public domain phrases — 'players gonna play' and 'haters gonna hate' — that are free for everyone to use," as well as two other tautologies.

"The presence of versions of the two short public domain statements and two other tautologies in both songs ... simply does not satisfy the extrinsic test," Anderson wrote. "Otherwise, Plaintiffs could sue everyone who writes, sings, or publicly says 'players gonna play' and 'haters gonna hate' alone with other tautologies. To permit that is unprecedented and 'cheat[s] the public domain.'"

The hearing for Judge Fitzgerald to reconsider his ruling is set for February 7 in Los Angeles.

Why It Matters. Copyright law, in so far, as it applies to popular music and music lyrics has been unsettled in recent years as artists and composers incorporate existing phrases, song lyrics, and even prior recordings into new work in the hopes that it will make them all more money and won’t draw the ire of hungry intellectual property lawyers. The District Court may have the chance to settle some of that confusion with its ruling in February.

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