Taylor Swift: ‘Shake It Off’ Lawsuit

Taylor Swift’s 2014 hit “Shake It Off” is once again at the center of a legal battle. On Monday, a federal appeals court revived a previously dismissed copyright lawsuit from songwriters Sean Hall and Nathan Butler, who allege the single lifts lyrics from their 2001 composition “Playas Gon’ Play.”



While both songs include variations on the phrases “playas gonna play” and “haters gonna hate,” a U.S. District Court judge dismissed the lawsuit in February 2018. Judge Michael Fitzgerald concluded at the time, “By 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters … The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.”



Now a three-judge panel from the Ninth Circuit Court of Appeals has reinstated the 2017 suit, citing a 1903 ruling from Supreme Court Justice Oliver Wendell Holmes. “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 of the narrowest and most obvious limits,” Holmes wrote at the time. “At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.”



In their reversal, Judges John Owens, Andrew Hurwitz and Kenneth Lee wrote that “originality, as we have long recognized, is normally a question of fact … Justice Holmes’ century-old warning remains valid. By concluding that, ‘for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here,’ the district court constituted itself as the final judge of the worth of an expressive work. Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court’s dismissal.”

Taylor Swift is asking a federal judge to call off a planned jury trial over allegations that she stole the lyrics to “Shake It Off” from an earlier song about “playas” and “haters,” arguing that the judge’s recent ruling against her was “unprecedented.”

Two weeks after the court refused to dismiss a lawsuit that claims Swift lifted the lyrics from an earlier song called “Playas Gon’ Play” by the group 3LW, the star’s attorneys urged the judge to reconsider his own decision – a rare step that judges take only if they’ve clearly gotten something wrong.



In the filing, Swift’s attorneys argued that the ruling rose to that level, warning that “no other court” had ever allowed such a case to proceed to trial.

“Plaintiffs could sue everyone who writes, sings, or publicly says ‘players gonna play’ and ‘haters gonna hate,'” wrote Swift’s attorney, Peter Anderson of the firm Davis Wright Tremaine LLP, in a Dec. 23 motion. “To permit that is unprecedented and cheats the public domain.”

The case against Swift was filed in 2017 by Sean Hall and Nathan Butler, the songwriters who wrote “Playas Gon’ Play.” In their 2001 song, the line was “playas, they gonna play” and “haters, they gonna hate”; in Swift’s track, she sings, “‘Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”

“Shake It Off” debuted at No. 1 on the Billboard Hot 100 in September 2014 and spent four weeks atop the chart. The song ultimately spent 50 weeks on the Hot 100, tied with Swift’s “You Belong With Me” for her longest-charting single.

On Dec. 9, U.S. District Judge Michael W. Fitzgerald refused Swift’s request to toss out the case. The judge said the case was too close to call, and would thus need to be decided by a jury of Swift’s peers.

“Even though there are some noticeable differences between the works, there are also significant similarities in word usage and sequence/structure,” Judge Fitzgerald wrote at the time.

In the new filing seeking to overturn that ruling, Swift’s attorneys argued that Judge Fitzgerald had made a “clear error” in his analysis. Namely, they argued he had failed to apply copyright law’s so-called extrinsic test – the process where judges filter out material that isn’t covered by copyrights before they compare the two songs.

“It is essential to distinguish between the protected and unprotected material in a plaintiff’s work,” Swift’s attorneys wrote, quoting directly from the high-profile ruling that dismissed a similar case against Led Zeppelin over the intro to “Stairway to Heaven.”

“Doing so here leaves only this similarity: both works use versions of two short public domain phrases – ‘players gonna play’ and ‘haters gonna hate’ – that are free for everyone to use, and two other but different tautologies that plaintiffs claim share the same underlying general idea or concept,” Swifts attorneys wrote. “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.”

In a statement to Billboard on Tuesday, an attorney for Hall and Butler called Swift’s motion “groundless.”