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.”
A rep for Swift did not immediately reply to a request for comment.
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.”
The case is now headed back to U.S. District Court for further proceedings.
