In 2017, songwriters Sean Hall and Nathan Butler sued Swift, claiming her 2014 hit, “Shake It Off,” lifted lyrics from their 2001 song for 3LW, “Playas Gon’ Play.” While both songs include variations of the phrases, “playas gonna play” and “haters gonna hate,” a U.S. District court judge dismissed the case in February 2018.
On Monday, however, a three-judge panel from the Ninth Circuit Court of Appeals revived the suit and sent it back to a U.S. District Court. In a statement, Hall praised the decision, saying, “We are happy the court unanimously sided with us,” and, “This case is giving voice to all of those creatives who can’t afford to stand up and protect their work in the face of well-financed Goliaths.”
In response, a rep for Swift said, “Mr. Hall is incorrect, the court did not unanimously side in their favor, the court sent the case back to the lower court for further determination. These men are not the originators, or creators, of the common phrases ‘Players’ or ‘Haters’ or combinations of them. They did not invent these common phrases nor are they the first to use them in a song. We are confident the true writers of ‘Shake It Off’ will prevail again. Their claim is not a crusade for all creatives, it is a crusade for Mr. Hall’s bank account.”
An attorney for the plaintiffs, Marina Bogorad of Gerard Fox Law, P.C., said, “We anticipate that there will be more attempts to get rid of the case, and we intend to keep going to get our clients their day in court.”
Upon dismissing the case in 2018, Judge Michael Fitzgerald said that when “Playas Gon’ Play” was released in 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 creative at all; it is banal.”
In its reversal, however, the Ninth Circuit judges cited a 1903 Supreme Court ruling, in which Justice Oliver Wendell Holmes wrote, “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.”
The Ninth Circuit judges added 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.”