The Ninth Circuit Court of Appeals has reversed and remanded the previous ruling that Taylor Swift, in specific the lyrics to “Shake it Off,” are not in violation of copyright infringement.
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In the court documents, Judges John Owens, Andrew Hurwitz and Kenneth Lee cited a 1903 ruling from Supreme Court Justice Oliver Wendell Holmes, which read: “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.”
The lyrics in questions were “players gonna play” as well as “haters gonna hate” which is being argued as proprietary to Sean Hall and Nathan Butler, who allege the lyrics are from their 2001 composition “Playas Gon’ Play.”
Attorneys for the plaintiffs, Gerard Fox Law, P.C. commented, “We are pleased with the ruling and believe it is one the entire industry should review. Gerard Fox Law is always eager to protect songwriters. Our founding partner, Gerard Fox, and our Appellate & Critical Motions Chair, Marina Bogorad, will continue their fight to protect the songwriters’ rights once the case comes down to the district court.”
Judge Michael Fitzgerald, also a U.S. District Court judge, had originally dismissed the lawsuit in February 2018 concluding that, “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.”
With the filing of the reversal, Judges Owens, Hurwitz and 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 under Rule 12 (b)(6).”
Hall, one of the plaintiffs in the case, released the following statement via Rolling Stone: “We are happy the court unanimously sided with us. We simply refuse to sit still and have our creative work be culturally appropriated as if it never existed. This case is giving voice to all of those creatives who can’t afford to stand up and protect their work in the face of well-financed Goliaths.”
The case will go back to the U.S. District Court for further hearings, a situation that Bogorad is prepared for.
“We anticipate that there will be more attempts to get rid of the case, and we intend to keep going to get our clients their day in court,” she said.