Taylor Swift Can't 'Shake Off' Lawsuit

Listen to a comparison of the contested lyrics from both songs, Jay Heyday Chuck joining me as intellectual property litigator Terence ross a partner Caton Uten Rosenman. So Terry tell us a little about the lawsuit. So, this lawsuit is about Taylor swifts monster song shake It Off, which debuted at number one on the Billboard Hot one hundred chart and remained there for fifty weeks, almost an entire year, and has sold more than nine million copies. So it's a

monster hit recording. And the plaintiff song, which also did quite well, quite frankly called Plays, was on the Billboard Hot one, never reached number one, but was on it for a while and got some playtime quite frankly, and writers of the play as song have alleged that their chorus is so substantially similar to the chorus and Taylor Swifts shake it off that there had to have been copyright infringement. It seems like those phrases that they're talking

about are just common phrases. It doesn't seem like there's anything original about them. Well, that was the original argument

that Taylor Swift made when she was first sued. She filed a motion to dismiss the district court, which is the trial court in the federal court system, and she argued that these were common phrases that were not copyrightable, they were not entitled to protection, and the district court judge agreed and dismissed the lawsuit, and the plaintiffs took them up to the Ninth Circuit, and the Ninth Circuit reversed and said essentially that the lower court was focused

too much on comparing the words as words and failed to consider that the arrangement of the words in the chorus across the course were sufficient to be copyrightable. No judgment on whether or not there was infringement the Ninth Circuit simply said, there is copyright protection here, and therefore the case was sent back to the district Court in California for further proceedings. And that's where we are now.

With this new decision by the district court, Swiss defense gets a little nuanced for the non musical tell us what her defense is here. So when the case got back to the district court, the defendants and Taylor Swift and her musical companies filed list known as a motion for some re judgment, which says, you know, based on all the facts of record, there is no legal claim here, no reasonable jury would ever find for the plaintiff, and

therefore we shouldn't have a trial. And the court rejected that motion denied it, so there will be a trial. But what was fundamentally at issue and came on this case is not about the music. This is exclusively about the lyrics of the two songs, and that makes it different from a lot of the cases we've talked about before, like Blurredlines and Ed Sharon's songs. It's only about the

lyrics here. And what Taylor Swift said was that there simply is not a substantial similarity between the two songs with respect to the copyrighted elements. The mere fact that they both mentioned players going to play and hater is going to hate doesn't mean that she copied in an inappropriate manner that constituted infringement. So the same judge who dismissed the lawsuit in is now allowing the lawsuit to go forward. Well, he was ordered to allow the lawsuit

to go forward by the Ninth Circuit. The way copyright law works is that there's a two part test that is applied to determine whether or not there is infringement. The first part is called the extrinsic test that's performed by the judge, and then the second part is called

the intrinsic test, which is performed by the jury. And under the part that's performed by the judge, the extrinsic test, you look at external factors that are considered objective factors to determine at an analytical level whether or not there's

a case of substantial similarity. And expert opinions from musicologists come in at this point very heavily, and that's a decision that's left to the judge, and the determination he has to make is whether or not in looking at these external factors there is sufficient belief that no reasonable jury could find infringement. And if he agrees with that, then he can cut off the case, not let it

go to the the jury. But if he has any doubts, he has to allow the case to go on to part two, which is the subjective or intrinsic test, which has to be performed by a jury stand trial, in which they look at the totality of the two works and make a subjective judgment as to substantial similarity. The judge was really sort of stuck here because there is some similarity between the words and the way the words

are arranged. He really felt, I think he was correct that he had to let this pass on to the jury and see what they thought about the total feeling of whether or not there was a substantial similarity. Although he mentioned that he thought taylor Swiss defense was a pretty good defense and might farewell with the jury. So now let's go to his opinion where he talks about

the factors to be considered. He said, the Ninth Circuit has acknowledged that it has never announced a uniform set of factors for analyzing a musical composition under the extrinsic test, and that it did not intend to change that precedent, although it recognizes the difficulties faced by the district court. So the Ninth Circuit basically says, yes, this test is confusing, but we're not going to help you out. Yes, And this is the problem that district judges have with copyright cases.

The Courts of Appeal have said, you have a role to play as a gatekeeper as to whether or not these cases go to trial and get decided by a jury, but we're not going to give you a list of factors to consider. And he references a very famous Ninth Circuit case that involved Mariah Carey's song Thank God I Found You, which also involved alleged similarities in the chorus

of two songs. And in that case, as the judges accurately quoted the Ninth Sir came right out and said, book, we can't come up with a list of standards for the district courts to consider. There's no checklist. You just

have to consider anything that seems relevant to you. And that's a very ambiguous thing to tell the judge who actually has to on a day to day basis, and Minister Justice in the copyright round, and to certain extent it's unfair, Although I get what the nice story is saying is it's hard to come up with a comprehensive list in other areas of copyright law. That hasn't stopped

us from coming on police with partial list. Fair Youth have four factors that mandatorially must be considered Court of the Supreme Court, but you can bring in other factors that may be relevant. I struggle to understand why we can't do that with respect to this substantial similarity test, at least with respect to the extrinsic prong of the test. So is to help out district court judges. What's the

biggest obstacle for the plaintiffs at trial? The problem I think the plaintives actually face here is Taylor Swift being the defendant. Taylor Swift is not just any work boarding artists. Taylor Swift is iconic. Take one of my daughter's Caroline, for example. She just loves Taylor's wife and could never believe that Taylor Swift copied anybody else's work because she

is so awesome. Now you're going to get a jury pool that has many people that feel that exact same way, and the plaintiff will have no chance to convince them. And yes, they will get the opportunity of law dear them and ask them questions to try to sort out people who may be prejudiced. But the reality is a lot of juris, particularly Taylor's Swift Sands, would die to

serve on this jury. And actually you get to see Taylor Swift up close and personal testifying, and so they're gonna be working real hard to get onto the jury even if they're not being completely forthright during law dear, and those jurors are gonna be in the defendant's pocket from day one, and there'll be nothing that can convince them. And that is the real problem that the plaintiffs have here at trial, is that they're up against Taylor Swift and her legion of fans. Is there a chance of

settlement here? It's been going on since twenty seventeen, So I have no inside information on settlement negotiations. I'll simply note that Taylor Swift has placed her respect and honor as one of America's great singer songwriters above considerations as to defense costs. Typically you get settlements one the defendant as this just isn't worth the money I'm paying my attorneys, I'll settle for a low dollar amount, even though I don't believe I did anything wrong. I don't think that's

going to happen with Taylor Swift. This is one of her iconic songs, and I don't think she's going to be wanting to be in a position where people would say, ah, she she took the lyrics from somebody else. Just to talk about the line of cases here, there were several high profile copyright infringement lawsuits. The Blurredline case in particular, there was a concern that artist songwriters would face a ton of lawsuits. Did the tide change with the led

Zeppelin suit? I certainly at the pendulum was swinging back in favor of more reasoned review of these music cases. Keep in mind that this is a lyrics case. Blurredlines, led Zeppelin at Sharon cases involved the actual tunes, the notes, the music, which are very difficult to analyze for a

districred judge or lay jurors. Lyrics are something that you really don't expect to have as much difficulty with, and I will say I was surprised that the ninth circuit reversed and found that there was something about the arrangement sequencing in the course that was copyrightable. The general black letter rule of law is that short phrases are not copyrightable.

But here the court emphasized the arrangement sequencing of these short phrases, and that is very reminiscent of other music cases involving the tunes, the notes, and so that's introduced tailment of complexity here, and we'll just have to see what a jury things. I think there is some possibility here that a jury will just go off on their instincts and say that doesn't that that doesn't sound right to me, that that's taking of things that are in

common parlance. But we'll see that's taking of things that are in common parlance. But we'll see. So in light of Bruce Springsteen selling his music catalog for half a billion dollars, tell us about the process Taylor Swift is in process of re re releasing the recordings now releasing the re recordings of her first six albums. Just tell us why. So it would take us an entire another episode to discuss how this came to be. But essentially, as a very young artist and this is common in

the music business. Taylor Swift lost the what are called the mechanical rights to her songs. She does not have control over the actual recordings the tapes, as they used to say, and tried very hard to get control over them, not purely for financial reasons, but also because she did not want her music and her name being free to be bought and sold as it appeared to be happening.

And she was unsuccessful in getting control over those early works back and so UM she has set up out upon a process of re recording all of her early works. Each one has the same title, except in parses afterwards, it's Taylor's version, UM, and this will give her control over the mechanical rights to those particular covers, if you will,

of her own original work. If the Bruce Springsteen situation is very different from Taylor's Swiss situation, UM, Bruce Springsteen is sort of at the end of his recording career um, and we wish him many many years of good life ahead, but also a sort of the end of his life journey. Taylor Swift is very much at the beginning of it, and it is still at the forefront of her mind. That she has decades and decades of recording ahead and and just living experience, and and and wants to have

control over her name and her songs. You can't blame her one bit um for for that goal. And so she is taking completely different approach than what Bruce Springsteen recently UM did. She's also had UM at a much earlier point in her life success financially with her recordings.

I've just been reading Steven van Zant's Um autobiography, Bruce Springsteen's Best Friend, talking about their early days, and you know, despite so much great music that Bruce Springsteen and the Easter Band produced in those those early days, financially, they weren't seeing a lot of the rewards and did not have the same sort of lifestyle that Taylor Swifted modern recording artists seemed to have with their success and and

so respect. You know, Bruce brings Rosie a number of children trying to monetize and now the later part of his life um all of those works, whereas Taylish was still at the start of her life and career. Thanks for being on the show, Terry. That's Terence Fross a partner. Catn Uten Rosenman hedge funds, beware. The United States Department of Justice is digging into your symbionic relationship with research firms, hunting for signs you tried to engineer stunning stock drops

or engaged in insider trading. It's an investigation that's thrilled legions of small investors, as trading in at least several dozen stocks is being examined, according to Bloomberg sources. Joining me is an expert in the area, Professor John Coffey of Columbia Law School. Jack tell us about this investigation and when it's started, well, this is something they've been planning for at least six months or more. They've consulted with some of the leading financial economists in the country.

They are doing a very careful review of a large number of cases. But I think what has most bothered them is the exploitation of a short interval between when a group of short sellers published negative research, often on an anonymous basis or a pseudo anonymous basis, and then prayed heavily in the period between when they release it on one day and the next day when the company

is able to respond. When the company responds, it may be able to come back with a convincing explanation or rebuttal, and the market equilibrates and there's not much of a decline, but for that first day there may be a drop or something in the stock, and the short sellers make

out like bandits. That doesn't look like it's fair to the small shareholders who tend to panic when they first hear the news and then get reassured when the company responds, but then it's too late that they've already sold hedge bonds and researchers do have a relationship. That's legal. It

is certainly legal, but here is the question. You can certainly hire researchers, but it is arguably deceptive to publish a report as independent research, which gives a greater credibility in the public's mind, when in fact you have already commissioned it and paid for an advance, and you asked them to research a particular target that you're interested in.

So our prosecutors looking for internal documents then of a relationship, I think they will be I think that they're going to want cases that have what lawyers typically called badges of fraud, something where there's been a bribe but there's been clear insighter trading when you've done something else so that doesn't just look like ordinary short selling. You have to remember that short sellers are both the heroes and

the rogues of the market. They have uncovered the biggest frauds which often escaped the government, often escaped the accountants, and often escape everybody except the profit motivated short seller. In the last two years, cases like the Lucky Coffee case in China or the wire card case in Germany, billions were lost and none of the regular gatekeepers responded

in any way until the short sellers came in. Remember it with short sellers who caught en Ron when the accountants MR and the sec MR and no one else saw it. So we need them. They can be heroes of the market, but they can also try to make quick, cheap profits, exploiting this time differential or providing research that they have paid for and focused in a way that's quite harsh without disclosing that this was commission research rather

than independent research. They were celebrating about this investigation on platforms such as Reddit, Stock, Twits, and Twitter. Those are exactly the retail customers who feel they are exploited by short sellers because they see the bad news and they rest to protect themselves, and the next day or the day after that, the company responds. It looks like only a small difference in their positions. Is this just another front in the Department of Justices inquiry or is this

a new inquiry? Well, I think it's nothing is totally new, But I think there's much in this that is new. This is the Department of Justice bringing a criminal investigation, not the sec bringing some charges and settling quietly. People are going to be staced with prison if they are found to have deliberately misled or hidden key facts, particularly

the use of the pseudonymous article. That is, rather than putting it out in your own name, you put it out in some new name that you just create, the Avenging Angel, spider Man, whatever, and that it looks credible. But if you knew this was the guys that gave you some overstated advice six times in the last year, you give it less weight. So you use this new name and help that will give it greater credibility, or at least won't carry the negative associations that the short

sellers have already created. So how challenging would it be for prosecutors to bring charges against short sellers and win. It depends on the evidence they get, which is why I hope they hold back until they have a case with strong evidence. If their government can show that you were paying people to give them confidential information about their employer, that would be a case it looks like they're paying

people to breach their produciary duties. Or if you get other cases of insider trading or bribery or deliberate deception. If you call this independent research when you half wrote it, you are a short center. You are known to be on this side of the aisle, and no one totally trusts you when you put out what you call independent research. But it may be that you wrote half that independent research and you edited so they said exactly what you wanted.

That can be deceptive. I was sort of surprised the investigation is being handled by federal prosecutors in Los Angeles. I thought that prosecutors in Manhattan usually handle these types of financial crimes. Well, often these kind of cases are in the Southern District in New York. But remember, the

government has only so much resources. And these are the same people, by the way, leading this investigation who recently won some major and unprecedented cases in which criminal violations were found for spoofing, so they have one original case. In the past, you and about a dozen other prominent securities law professors have urged the sec to do certain things.

Tell us what you want you think again, I'm told you that there is this exploitation of this narrow window between when you put out negative research and immediately trade on it and when the company responds. I think there should be some way to close that window further so that you can't make a bundle of money on the hour or two in which no one else is commenting,

and that has been happening. We also have a problem with what I'll call the pseudonymous research, where you use some new entity that no one's ever heard of, Spider Man, Avenging Angel, or something like some kind of fancy new name, and you may have to just may have to disclose who is behind that. There's First Amendment problems there, to

be sure, because we don't like to restrict speech. But hiding your identity when you have a strong reputation, which will lead investors not to trust you as much, that strikes me something that could also be misleading. So lawmakers have held several hearings following that meme stock trading frenzy in January. Do you expect lawmakers or do you think lawmakers should do something here? Well, I don't think they will because this is complex and lawmakers like to have

a simple target. I think the SEC could do more both with respect to short selling rules and the general problems. When you look at the game Stop in the A m C Trading you see villains on post sides. You see the game of vocation of the market, people turning trading into a game at places like Robert Hood, which creates an excessive incentive to trade and to trade on options, which is very, very dangerous. On the other side, you

see short sellers. Gave Stop was in part an attempt to squeeze the short sellers, and it did squeeze them, and perhaps they deserve to be squeezed. But we had people on one side who were trading excessively because of all these new apps that make it so simple and so attractive, and because they're told that it's free. It's not really free, but they're told that. On the other side, we have people who were engaged in heavy shorting of a stock like game Stop, which to most traditional investors,

looks like a very shaky company. Oh, it looks like it's the future of the world to those people in the Men and the mem Stock group. On riddit, Thanks Jack. That's Professor John Coffee at Columbia Law School. Former Minnesota police officer Kim Potter is on trial for the fatal shooting of twenty year old Dante Right during a traffic

stop in April. Potter says she meant to draw her taser to stop Right from driving away as officers tried to arrest him on an outstanding warrant for weapons possession, but she drew her gun by mistake. Potter is white and Right was black, and his death in the middle of the trial of former Minneapolis police officer Derek Chauvin for the death of George Floyd set off several nights

of angry protests. Joining me as former public defender Krista Groshek, managing attorney of Grossek Law, the prosecution played this video of Potter right after she shot Right, hysterical rocking back and forth while laying face down on the lawn with her head in her hands and saying, I don't know I don't know what happened. Which way does that cut? Does that work for the prosecution or for the defense?

I think it works great for the defense. I think that a jury is going to have a hard time convicting somebody that reacted like that, Like this was clearly an accident, it was on planned. She was immediately remorseful. She's also fearful that she'd be facing charges herself. So her worst nightmare came true. But it wasn't a stretch for her to think she'd be charged. I mean, in this day and age of police scrutiny, and of course you know George Floyd was going on at the time

of the stop. I think this is really powerful evidence of the defense. I really do. One part of it, as you mentioned, she said I'm going to prison, Oh my god, what am I going to do now? Mike. The jury interpret from that that she was worried about herself rather than about the boy she just killed. I thought, at the beginning of that transcript, if you will, she had said, oh my god, I just I just shot him where I just killed him. I just killed killed

a man. What we know about Potter is that, you know, I don't think she has seen a lot of street action, if you will, like she she did a fair amount of all I guess hostage negotiation, and historically she's been able to say the right thing to talk people down right so she doesn't have to grab her gun on

her taser. What I thought was super powerful about the defense opening, and I believe this is true that she's never had to use her taser before, never, So I think this was a reaction from somebody that you know, thought pretty clearly based upon how everything went down. She had good reason to believe that he was dead and there really wasn't much to be done, and she was also not in a location, you know, near him to do something. I mean, she just absolutely collapsed really at

the scene of where she shot. Sergeant Johnson, who was on the scene, testified and on the scene you hear him say the guy was trying to take off with me in the car. When he's trying to calm her down and says, Kim, take a breath, take a breath, You're okay. The guy was trying to take off with me in the car. I mean, is it clear what happened? Because he let go of the suspect's arm when he heard Potter say she was going to use her taser. So as right started drive off, would he have been

in danger? It's hard to say. You know, a very close review of that video is going to be warranted. It's hard to know because he was sort of in over the front seat passenger and at one point holding the gear box or holding the shifter. I think at one point he was reaching out um to Mr Wright as well. So I think a really close review and a re review and a third and a fourth and the twentieth review of that tape was going to be

super important. And noticed that on cross when the defense attorney asked Johnson what would happen, he said, I'd be injured, and then the defense attorney said seriously injured, maybe even dead, right, So he sort of pulled that out of him. Does the jury have to think that that officer might have died? I don't think they have to think that that he would have died. I mean, whether it was serious injury

or death. You know, certainly it's a more compelling argument that she had to choose between two lives and you know, like a split second, right, But the fact that there's an officer inside of a car that might be you know, driven off and he might have died or it might have been seriously injured. I think the calculus is the same. Um. You know, defense attorneys are allowed to lead on cross though that's what he was doing to you know, get

the answer to where he wanted it to be. But either way, I think it's sufficient for a jury to reasonably conclude that, hey, she had to do what she had to do in that moment to protect her partner that he was asked whether Potter had the right to you, this is Johnson again, whether Potter had the right to use deadly force? Is it clear that she had the right to use deadly force to prevent Dante right from

driving from the scene. Well, I think the way deadly force comes in is just what we you know, we're discussing in your previous question. If there was going to be serious harm to somebody else or death, then I

think yes she did. If we're talking about what the state wants us to believe, is the case that you know, he had a warrant right and he you know, may have had an order for protection or it may have had you know, a gun issue out there, And I think that gets a little dice here, But the fact that that other officer was in the car right to some degree for a period of time, I think that a jury can reasonably conclude she had to do something to prevent bodily harm to her fellow officer. I think

that's fair. So they pulled him over for driving with expired license plates. And also, Minnesota has a law that prohibits motorists from hanging air fresheners and other items from their wors. Well, the way I've heard it argued is that it's it's kind of a stupid law because number one, a lot of people do it, whether it's an air freshener or it's you know, some sort of decoration from a rosary to a pair of you know, fuzzy dice, right, Like, lots of people do it, and it doesn't necessarily have

anything to do with criminal activity. Right. So, um, I've heard it argued in that way that you know, this is something that will justify a lot of stuffs, but really don't have a valid basis that that law has been challenged a bunch and it's stayed on the book. So it is a valid stop. Yeah, Okay, so a valid stop. And then when they find out that there's a warrant out for him, that raises their level of concern. According to the defense, for sure, he's got a warrant own.

I think it's on a weapons charge. There's also I think a question about who the front pass and who the front seat passenger is because he's got a order for protection out against him, So is he in the presence of the person he's not supposed to be with, right, Um, That kind of you know, ratchets things up. The other part is when they get him out of the car and they try to put handcuffs off on him. Office to Lucky's pretty clear he's he tells him on video,

you know, don't tense up, man, don't do it. You know, all of these things are you know, start of upping the anti upping the antie. Then we've got the sergeants who you know, half of body is inside the car and it looks like it's pretty clear that Mr Wright has intentions of driving away. I mean, one thing that hasn't really been addressed is the danger he presented to other people on the road. Anytime there's a fleeing right and somebody's striving crazy to get rid of you know,

a police officer who's following them. It's dangerous to other people on the road. Sometimes you can end like with a crash. Sometimes it can end with you know, them them throwing out items to get the car to stop, like it presents a threat to you know, the public at that point as well. She's a year veteran of

the force, She's had no incidents against her. I think it is so critical that she take the stand and she explained things from her perspective, what was going on in her mind, what was happening, you know, in her heart, Like why does she do the job of police officer. I think that is so critical to really humanizing this case. And and that's the only way the jury is going to see things from her point of view. And the way the descent structured their opening was to really humanize her.

And she has to be the person drive that home. That's the only way that gets in. She's charged with first degree man slaughter and second degree man slaughter. What would each of those require? So I'll start with second degree. Second degree man's thaughter requires essentially that she takes an unjustified risk that's dangerous under the circumstances I think that's

pretty hard for them to prove, right. And then the other charge I think is even more hard for the state to prove because it it requires her to have had some intent to assault him, right, which then gets to this question of was it reasonable for her to even pull out her taser? Was it reasonable for her right to use the deadly force that she did under

the circumstances. So the first degree man slaughter charge really puzzled me, and you know, they listened to the testimony critically to figure out if that's really the angle that you know that the state has that you know, she had some kind of an intent to assault him. Um. I think that's a pretty big stretch under the circumstances. Um. But you know, the second reeman thought her. The charge we typically see for officers in this situation is, you know,

did she take the risk that was too great? Right? And that's why the defense continues to build up. You know, all all of these um factors right from officer inside the car, he's resisting arrest, he's about to take off, who is the front seat passenger, and we know that he had a warrant on a gun on a gun charge, right, what's going to happen next, and she had seconds to

think about it. That that that's what I think, you know, makes this analysis so much easier than, for example, the analysis and the Chauvin trial, right, And by easier, I mean easier for a jury to look at it through the defendants eyes and and equit them because she had seconds to react. This all went really fast, harder furtheritors to get you know, into Chauvin's um perspective that he should just keep kneeling on somebody for nine minutes. Right,

they're apples and oranges. And in this case, I think that the video is still compelling for her, all of it. So obviously she made a mistake. Does that lead to second degree manslaughter? Though not if you think her choice, you know, to you know, pull that phaser out was

reasonable under the circumstances. It's not a question of, you know, wasn't reasonable for her to pull a gun if you believe she committed you know, that that move and error, right, she thought she had her taser, but she reached her gun. That's the mistake. But if you believe she had a basis to try to stop this person from taking off,

that her actions are justified. And there's no crime here because this is you know, this is the third case that I can think of involving a black man being killed by a police officer in Minnesota in recent years. Do you think that there would be outcry if she is found not guilty. Probably. I mean what I'm noticing, even from you know, the attorney com and Terry, you know, different stations and outlets are are showcasing, is that the attorneys are really, you know, of different minds about this.

And you know, I suspect that there is a certain you know population who you know, are going to say, wow, you know, this is really a miscarriage of justice if there's not a conviction. And I think that there is another camp that will say, well, you know, finally this lady got acquitted because this is really truly mistake in our case is so different from the other officers that were required to go on trial. I think it'll be

very divisive. Thanks Krista. That's former public defender Krista Grosschek, managing partner of Groschek Law. And that's safe In this edition of the Bloomberg Law Show, I'm June Grosso and you're listening to Bloomberg