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Can't "Shake it Off" Yet: Court Denies Taylor Swift's Motion to Dismiss Copyright Infringement Lawsuit

On September 2, 2020, a California federal judge denied musician Taylor Swift’s motion to dismiss copyright infringement claims related to the lyrics in Swift’s hit song Shake It Off. On remand from the Ninth Circuit, the district court held the merger doctrine did not apply at this stage and that plaintiffs Nathan Butler and Sean Hall sufficiently alleged a protectable sequence of creative expression and substantial similarity in the lyrics at issue. This ruling comes nearly three years after Hall and Butler originally filed suit, and nearly one year after the Ninth Circuit breathed new life into the case by reversing the district court’s prior dismissal of this lawsuit.

Hall and Butler wrote the song Playas Gon’ Play, which was performed and released by the group 3LW in 2001 and peaked at number 81 on Billboard’s Hot 100 chart. The chorus consists of the following lyrics:

Playas, they gonna play
And haters, they gonna hate
Ballers, they gonna ball
Shot callers, they gonna call
That ain’t got nothing’ to do
With me and you
That’s the way it is
That’s the way it is.”

In 2014, Swift and her co-writers wrote the song Shake it Off, which debuted at number one on Billboard’s Hot 100 chart. The chorus consists of the following 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
Heartbreakers gonna break, break, break, break, break
And the fakers gonna fake, fake, fake, fake, fake
Baby I’m just gonna shake, shake, shake, shake, shake
Shake it off / Shake it off.”

In 2018, the district court granted Swift’s prior motion to dismiss the lawsuit because “the lyrics in question are … too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.” The Ninth Circuit disagreed, holding in a two-page opinion in 2019 that the Complaint “plausibly alleged originality” and therefore could not be dismissed as a matter of law.

On remand, the district court denied Defendants’ argument that the merger doctrine bars plaintiffs’ claim, stating Defendants offered no authority that the idea underlying plaintiffs’ lyrics can only be expressed in one way. Additionally, the district court noted that Swift pointed to no caselaw where a plaintiff plausibly alleged originality (as the Ninth Circuit held here) but failed on merger grounds. The district court stated if “the alleged material is deemed sufficiently original, it is unclear how it possibly could be so general to fail under the doctrine of merger.”

The district court also held that plaintiffs sufficiently pled their selection and arrangement theory, holding that plaintiffs plausibly argued that there are at least two and perhaps as many as nine creative choices that Swift copied. Finally, the district court held that plaintiffs sufficiently alleged substantial similarity and declined to determine at this early stage that the lyrics are not substantially similar. Defendants’ answer to the complaint is currently due September 21, 2020.

Copyright 2022 K & L GatesNational Law Review, Volume X, Number 248

About this Author

Susan M. Kayser IP Litigation lawyer KLGates

Susan Kayser is a partner in the firm’s Washington D.C. office where she is a member of the IP Litigation practice group.

Ms. Kayser litigates and counsels clients including international brands and startups, on trademark, advertising, and copyright matters. The Legal 500 and World Trademark Review have recognized her as an “‘outstanding’ disputes specialist” and a leading trademark litigator and acknowledged her for counseling acumen.

For more than 20 years, she has provided strategic advice to brand owners in the apparel, fashion, luxury, consumer...

Eric Lee, KLGates Law Firm, Commercial Litigation Attorney

Eric Lee concentrates his practice on general civil and commercial litigation matters, with an emphasis on patent, trademark, copyright, and other complex intellectual property litigation. He also counsels clients regarding their intellectual property portfolio development through the creation, development, and leveraging of copyrights and trademarks. In addition, Mr. Lee has experience in class action litigation and consumer finance litigation, including the defense of banking, mortgage lending, and consumer financing services companies in state and federal class...