The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Taylor Swift Decision: Copiers Gonna Copy, Copy, Copy

And that's not copyright infringement, if they only copy short phrases, especially ones that were themselves largely copied from others.


From yesterday's Hall v. Swift (C.D. Cal. Feb. 13, 2018):

The only obvious similarities between [plaintiff Sean Hall's Playas Gon' Play and defendant Taylor Swift's Shake It Off] is that Playas Gon' Play contains the lyrics "Playas, they gonna play / And haters, they gonna hate," and Shake it Off contains the lyrics "'Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate." The lynchpin of this entire case is thus whether or not the lyrics "Playas, they gonna play / And haters, they gonna hate" are eligible for protection under the Copyright Act.

The Copyright Act protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device." … "Although the amount of creative input by the author required to meet the originality requirement is low, it is not negligible." "There must be something more than a 'merely trivial' variation, something recognizably the artist's own….

[S]hort phrases are generally not accorded protection. "Ordinary phrases are not entitled to copyright protection… Phrases and expressions conveying an idea typically expressed in a limited number of stereotyped fashions are not subject to copyright protection." Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (holding that the following phrases, among others, that defendant copied were not subject to protection: "river wound its way between muddy banks crawling with alligators," "hordes of gold seekers," "shanties and corrugated [iron/steel] shacks … were crowded together," and "beach was strewn with boxes, bales"); see also AcuffRose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 143-44 (2d Cir. 1998) (song lyrics "You've got to stand for something, or you'll fall for anything" not protectable); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (advertising phrase "most personal sort of deodorant" not protectable); see generally 1 Nimmer on Copyright § 2.01[B][3] ("The refusal to protect short phrases applies a fortiori to one or two words. Even marginally longer phrases ('if no pulse, start CPR') are appropriately denied copyright protection.")….

[C]ourts have recognized that there may be exceptions to the general rule that short phrases are not protectable where a short phrase is sufficiently creative…. [But a]s reflected in Defendants' [list of songs using similar language], and as Plaintiffs acknowledge, by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters. Although Plaintiffs recognize as much, they allege that they "originated the linguistic combination of playas/players playing along with hatas/haters hating…" Plaintiffs explain that the plethora of prior works that incorporated "the terms 'playa' and hater together all revolve about the concept of 'playa haters'" – a "playa" being "one who is successful at courting women," and a "playa hater" being "one who is notably jealous of the 'playas'" success." Plaintiffs explain that Playas Gon' Play "used the terms in the context of a third party, the narrator of a song who is neither a 'playa' nor a hater, stating that other people will do what they will and positively affirming that they won't let the judgment of others affect them."

The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases "playas … gonna play" or "haters … gonna hate," standing on their own, no more creative than "runners gonna run," "drummers gonna drum," or "swimmers gonna swim."

Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of "playas, they gonna play" and "haters, they gonna hate" is sufficiently creative to warrant copyright protection…. [But] Plaintiffs' combination of "playas, they gonna play" and "haters, they gonna hate" – two elements that would not have been subject to copyright protection on their own – is not entitled to protection. Two unprotectable elements that, given pop culture at the time, were inextricably intertwined with one another, is not enough….

[T]he lyrics in question are not sufficiently creative to warrant protection. As noted in Nimmer, "It appears … that there is a reciprocal relationship between creativity and independent effort: the smaller the effort (e.g., two words) the greater must be the degree of creativity in order to claim copyright protection." Even if, as Plaintiffs contend, Plaintiffs were the first to employ the concepts of players playing and haters hating for the purpose of expressing "the idea of not concerning yourself with what other people do and think," the allegedly-infringed lyrics consist of just six relevant words – "playas … gonna play" and "haters … gonna hate." In order for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here…. [C]ombining two truisms about playas and haters, both wellworn notions as of 2001, is simply not enough.

Quite right, I think.