Taylor Swift Can’t Shake Off Copyright Suit

Cherry ch cheer say s out. But Taylor Swift can seem to shake off a lawsuit claiming she stole the lyrics to her teen mega hit Songwriter Sean Hall and Nathan Butler claim that Swift's shake it Off infringe on the lyrics of their two thousand one song play is Gonna Play Play Bloom and he didn't call the father.

A federal judge throughout the lawsuit last year, noting lyrics from more than a dozen other song titles and band names that referenced players, haters, or both, but the Ninth Circuit Court of Appeals disagreed and reinstated the lawsuit, sending it back to the judge. Joining me is intellectual property litigator Terence Ross, a partner at Captain Nuten Rosenman. So Terry, why did the Ninth Circuit reverse the lower courts decision?

The Ninth Circuit decided that the lower court judge had decided at too soon a point in the case that the allegedly copied work was lacking in originality. So this was essentially a procedural ruling, sending the decision back to the court and instructing the lower court to reconsider at a later point in the case whether or not the claimed copyright phrase had sufficient originality to all lawsuit. Terry explain what the copyright claim is? Is it just over

these short phrases. There's actually two allegations. One is over this word phrase. The plaintift song is called play is going to play, and everyone knows around the world, probably Taylor Swift's now famous song players going to Play, Play Play Play. He He's going to hate hate, hate hate, shake it off. And so that short phrase players going

to play is one aspect of the case. But the other aspect is a four part lyrical sequence in the song players Gonna Play, which was also found to be lacking in sufficient originality to be copyrightable in the first place. Courts routinely dismissed copyright infringement claims. Isn't this a threshold question that the judge could answer they seemed to be

ordinary phrases in lyrics. I agree with that completely. Indeed, the United States Copyright off has a regulation that says it will not allow short phrases to be copyrighted, and they don't take applications on short phrases and run them by the general public to see if they have sufficient degree of originality. So I think this decision in some respects surprised many copyright practitioners. But again it's important to stress that this is not in any way a decision

on the merits favoring either side of the dispute. This is going to go back to the trial court and the case will go on. All of the claims are still existing, all of the burdens of proof that the planet has still have to be met, All the defenses that Taylor Swift has still exist and are still considered valid. So it's simply postponing for another day the question of whether or not these short phrases are a copyrightable in

the first place due to originality. Did the Ninth Circuit give the lower court guidance on what to do next. Not really. The Ninth Circuit's decision essentially tells the district court judge that you, the district court judge, at the very outset of the case, should not be making a determination as to whether this short phrase had sufficient originality to be copyrightable. Because remember, you don't get to copyright

just anything. There is at least a threshold requirement of showing some minimal degree of originality in creativity to justify a copyright. We don't allow a copyright in facts. We don't allow copyrights and common sayings or expressions that people use every day, because we don't want to create monopolies and words or in short phrases. But all the Ninth Circuit here said was we're not previewing how we would come at We're is telling you, the trial judge, that

you did this too soon. You have to at least wait till later point in the case to make this decision on originality. What other information does the court need? Does this actually have to go to a jury. It might have to go to a jury, but there is a way of shortcutting a jury trial that's referred to as a summary judgment and here, Taylor Swift would potentially bring a summary judgment motion saying that no reasonable jury could ever find that this short phrase is sufficiently original

to be copyrightable. And in that case, a judge, if he agrees that no reasonable jury could make such a finding, could substitute his opinion for that of the jury, and you would bypass a jury trial. Hence the phrase summary judgment. I'm not saying that that's what's going to happen here. I'm just saying that it is not necessarily the result of this ring that there has to be a jury trial.

The judges on the Ninth Circuit panel reached back to a nineteen o three decision from Supreme Court Justice Oliver Wendell Holmes for a quote. Why do they reach back so far? So this is sort of an inside baseball

issue here. I believe it's my opinion that the Ninth Circuit judges were concerned about how this ruling would be perceived by copyright practitioners in general, that most copyright practitioners would have the same reaction June that you did, which is, do you really have to have a jury trial on this? And so they were looking for a form of cover here, and they cite an iconic decision in the area of

copyright law called Blystein versus Donaldson Lithographing Company. It does go back to three but it is by one of the great jurists of all time, Oliver Wender Holmes, Jr. And we he says, with respect to an illustration, that the decision on whether it is sufficiently original should go to a jury and not be made by judges. And I think what they're saying there is, Hey, look, we're not the first group of appellate judges to decide that originality has to go to a jury or a fact

finder or some sort. The great Justice Holmes did this, and this is a case that is taught to this day in every single copyright treatise, and every single law student who takes a copyright class will learn this case and know this case. So it is instantly recognizable to the fraternity of copyright lawyers and is a way of really saying, hey, I don't think what we are doing

here in the Ninth Circus unusual. Justice Holmes did this, remember b. Lifstein, But he is the Ninth Circuit, This panel of the Ninth Circuit setting the bar lower and lower in copyright cases and perhaps leading to a lot more copyright cases June. I don't think the Ninth Circuit was attempting with this case to purposefully lower the bar for plaintiffs or to raise the bar for defendants in

copyright cases. I think the court was simply making a decision with respect to allocating the final determination of originality away from a district court judge to a jury or other fact finder. The result of this decision is to remove a quick, easy, inexpensive mechanism for performers and record companies to get rid of lawsuits in the copyright area. It does indeed raise the bar a little bit. I'm not saying it raises the bar a lot, or even in a way that can't they'll be hurdled by defendants.

But again, I don't think this Ninth Circuit panel was thinking in these terms. What they were thinking about was, are you the trial judge the right person to determine what constitutes originality? Given the history we have in this country with respect to allocating originality decisions to fact finders, I eat juries. I think that's all they were doing. I don't think they were purposely trying to make it easier for copyright plannings are harder for copyright defendants in court.

Some people say this might stifle creativity. Do you agree with that? I don't think that this decision itself will stifle creativity. My experience with entertainers is that they're driven to create and would arguably do so even without complete copyright protections. That is not to say that they shouldn't be worded for their creativity. They should, but I don't think this decision in and of itself is going to change that calculus one way or the other. Does this

have any implications for the Stairway to Heaven case? This decision probably does not have an implication for the Stairway to Heaven cases. In that case, the issues were more with respect to infringement as opposed to hear where the issue has to go to validity of the copyright in

the first place. An argument fundamentally here is don't even consider whether there was copyright infringement, because you could only have infringement when there is a copyrightable work, and that the underlying work, the simple phrase player is going to play it is simply not copyrightable. People say that all the time, at least that's the argument, and I just don't see that as impacting the Stairway to Heaving case. It impacts a lot of other cases that might get

brought in the future though. Thanks for being on Bloomberg Law Terry. That's Terence Ross of caton Uten and Rosenmant. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg