Updated Comment by Awani Kelkar
With a brief (below) containing significant references to the District Court judgement that it challenges, plaintiffs Sean Hall and Nathan Butler now pursue before the Ninth Circuit the originality, and copyrightability, of their lyrics for “Playas Gon’ Play”. The lower court’s skeptical opinion on those issues held that “the allegedly infringing lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection.”
The appeal hinges on two main issues: First, that the District Court erred by making a subjective determination of originality on a motion to dismiss, without referring the case to a jury trial; Second, that the disputed lyrics of the complaining work are a “sequence of creative expressions” and were not “just six relevant words,” as U.S District Judge Michael Fitzgerald put it, and therefore eligible for copyright protection. It appears, however, that the appellants’ appeal was motivated by the District Court’s refusal to award attorney’s fees to Taylor Swift, and its determination that “if the Court’s only choice were between awarding fees to [Appellees] based on the Complaint or fees to Appellants …, the Court would without hesitation award the fees to Appellants.”
Updated Comment by Niall Fordyce
In an anything but subtle opinion, on February 13, 2018, the Court in Hall, et al. v. Taylor Swift, et al., Case No. CV 17-6882-MWF (ASx), all but put to rest plaintiffs’ claims that they were somehow entitled to copyright protection for their use of the lyrics “Playas, they gonna play / And haters they gonna hate” in their otherwise forgettable work “Playas Gon’ Play.” (Please see MCIR posting for detailed description of the initial case and claims).
From the outset, the Court made its position clear, stating that it was able to evaluate the matter without expert opinions on musical elements or a jury evaluating musical similarities. The allegedly infringed lyrics “are short phrases that lack the modicum of originality and creativity required for copyright protection.” Ouch. The Court further stated “[w]hile the Court is extremely skeptical that Plaintiffs will … be able to rehabilitate their copyright infringement claim in an amended complaint, out of an abundance of forbearance it will give Plaintiffs a single opportunity to try.” Ouch again. In case there is any mystery in the Court’s language, rest assured that this is a judicial smackdown.
Without belaboring the legal issues, defendants brought a motion under Federal Rules of Civil Procedure, Rule 12(b)(6), for failure to state a claim on which relief can be granted. The standard for surviving such a motion is not high – a plaintiff must only state a claim for relief that is plausible on its face. Notwithstanding, plaintiffs could not meet this standard.
While determination of infringement is often resolved on summary judgment, or by a trier of fact at trial, the Court pointed out that “there is no logical reason to delay the inevitable when the Court already has the allegedly infringed and infringing works before it on a motion to dismiss.” Judges, they gonna judge…
Neither side disputed that plaintiffs have a properly registered copyright in the work in question. Rather, the crux of plaintiffs’ response to defendants’ motion to dismiss was that their playas / haters lyric contained sufficient creativity to warrant copyright protection. The Court thought otherwise, outlining various examples of “players, haters, and player haters,” culminating with the Court’s comment that “[t]he concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” Ouch yet again.
The Court further shut down plaintiffs’ argument that the combination of the playas / haters couplet was sufficiently creative to warrant copyright protection, stating “combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”
However, the result for plaintiffs could have been worse. On April 16, 2018, the Court denied defendants’ motion for attorney’s fees and costs. In so ruling, the Court was making the determination that in effect, plaintiffs’ lawsuit was not actually frivolous. Defendants argued the standard party line that an award of fees and costs against plaintiffs would serve the public interest by deterring similar lawsuits in the future. The Court was not buying it, admonishing defendants that “[t]here are very few recording artists, if any, who have a greater interest than Ms. Swift in a robust regime of copyright law… Be careful what you wish for.” It appears that ouch can work both ways.
Original Comment by Niall Fordyce
Broadly speaking, is it likely that the future activities of a “player,” or “playa” will include “playing”? Will a “hater” likely engage in some sort of “hating”? Likely yes, but if Sean Hall and Nathan Butler, d.b.a. Gimme Some Hot Sauce and Faith Force Music respectively, have their way, one will need to tread carefully as to how one communicates such concepts. On September 18, 2017, Hall and Butler (“plaintiffs”) filed suit against Taylor Swift, her co-songwriters, publishing companies, and record label (defendants) in the Central District of California claiming that Swift’s massive hit Shake It Off infringes on plaintiffs’ lesser known work from 2001, Playas Gon’ Play, recorded by the group 3LW. Plaintiffs claim infringement primarily through defendants’ use of the phrases “playas gonna play” and “haters gonna hate.”
At the heart of plaintiffs’ claim is not that they own copyrights in the individual phrases “playas gonna play” and “haters gonna hate.” These would surely be considered uncopyrightable generic language in hip-hop, R&B and pop music in general. Rather, according to plaintiffs, the crux is that “in 2001 [this combination of phrases] was completely original and unique.” The creativity and originality plaintiffs claim is protected by copyright is plaintiffs’ combining of these two phrases, with “playas…” first, followed by “haters….” Although less clear, plaintiffs also appear to be claiming infringement of their “four part lyrical sequence” outlining “actors engaging in a type of activity.”
Plaintiffs are correct that courts may recognize copyright protection in the “sequence of creative expression” of otherwise uncopyrightable phrases. See, e.g., Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir. 1986). However, this is a tricky proposition. There must be creativity in the ordering of the phrases.
In explaining their position, plaintiffs isolate the term “playa hater” and explain that “the term described one person, either a playa hater or a hater, who often engaged in hating.” Plaintiffs acknowledge that “playa hater” and similar combinations existed long before plaintiffs’ work came into existence. Plaintiffs ignore that both “playa” and “hater” as used by plaintiffs have existed for decades in popular culture separate and apart from one another. Plaintiffs state the “lyrical phrase [plaintiffs created] describes two separate people – one playa who engages in playing and one hater who engages in hating.” The implication being that the two words “playa” and “hater” have never been conceived of in the way plaintiffs have encapsulated here – as applying to two different people. The standard for creativity necessary for copyright protection is admittedly not high, but does plaintiffs’ wordplay show even a modicum of creativity?
Plaintiffs are careful to assert not that they have a registered copyright to the “playas” and “haters” phrases, but that their sequence is “unique and copyrightable.” Although plaintiffs appear to have a properly registered copyright in the words and music to Playas Gon’ Play, this does not mean that each word or phrase (or limited combination thereof) is necessarily subject to copyright protection. “The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991). Standard or stock expressions, or expressions that are common to a particular subject matter or medium are not protectable under copyright law. Murray Hill Publications, Inc., v. Twentieth Century Fox Film Corp, 361 F.3d 312, 319-20 (6 th Cir. 2004).
Are plaintiffs really the first to come up with the combination of “playas” and “haters” in Playas Gon’ Play? Or were they just imitating a standard, generic, often-used couple of phrases from popular culture? Presumably, at some point, plaintiffs will present some actual evidence to support their position.
The citation from Feist above was used by the court in a recent Central District opinion in another copyright case involving Shake It Off, Jessie Braham v. Sony/ATV Music Publishing, et. al.. In dismissing Mr. Braham’s claims, the Braham court specifically addressed the same phrases that are at issue here. Plaintiffs reference this case in their complaint, claiming that the Braham opinion notes plaintiffs’ work as the first use of the “playas” and “haters” phrases in public. A parsing of the court’s opinion reveals no such assertion. The court merely identified internet sources to demonstrate that the “haters” and “playas” phrases were not original components of Mr. Braham’s work. Jessie Braham v. Sony/ATV Music Publishing, et. al., US District Court Central District of California Case No. 2:15-cv-8422-MWF (GJSx), pp. 7-8: 13-10. Admittedly, plaintiffs’ work was the earliest work cited by the Braham court, but plaintiffs’ portrayal of the court’s findings is misleading at best.
Plaintiffs fail to note that the Braham opinion does outline dissimilarities in the two works under its review, pointing out that although both works use the “playas” and “haters” phrases, the two works have different melodies, and belong to different musical genres. Id. at p. 7: 5-11. Such is undeniably the case here. Playas Gon’ Play and Shake It Off are in different musical genres, have almost no musical elements in common, and the lyrics address very different subjects. Playas Gon’ Play is a standard ode to love remaining true in spite of general hardships, disfavor, etc. while Shake It Off is Swift’s response to personal attacks on her by various sources, some of whom she categorizes as “playas” and “haters.”
Further, the Braham opinion twice identifies Shake It Off’s use of a “rhetorical repetition” following the phrases in question (“play, play, play, play” and “hate, hate, hate, hate”) as distinguishing feature between the two sets of phrases, hampering any claim Mr. Braham could make of substantial similarity between the phrases. Id. at p. 6: 11-13; pp. 10-11: 24-3. The same problem confronts plaintiffs in this matter.
Along with the marked dissimilarities in the works applied from the Braham decision, plaintiffs ignore that plaintiffs and defendants’ use of the specific “playas” and “haters” phrases is also dissimilar. In Playas Gon’ Play, the phrases are simple declarative statements of what the individuals in question are going to do – they will play and hate (ball and call) – regardless of the relationship between the singer and the object of her affection. In Shake It Off, because of the future actions of the players and haters – playing and hating (breaking and faking) – Ms. Swift will choose to “shake it off,” with “it” being the playing and hating to be inflicted by the players and haters. Although zeroing in on how the phrases are used may seem frivolous, it is not. Phrase usage has a bearing on the analysis as to whether the phrases are substantially similar. See, e.g., Pendleton v. Acuff-Rose Publications, Inc., 605 F.Supp. 477 (1984) (no infringement where plaintiff and defendant composers had used settings of the words drink, smoke, and dirty joke, appearing in the same order in consecutive phrases, although in somewhat different contexts, in their musical works); O’Brien v. Chappel & Co., 159 F.Supp. 58 (S.D.N.Y. 1958) (copyright protection does not extend to words or phrases isolated from their context).
Moving on to plaintiffs’ assertions regarding defendants’ infringement, plaintiffs claim that the “infringed copyrighted material accounts for roughly 20% of ‘Shake It Off.’” How plaintiffs arrived at 20% is not clear. Plaintiffs’ two three-word phrases, repeated three times in Shake It Off total 18 words in a lyric containing 548 words, or 3.3% of the total lyric content. Looked at another way, there are 63 lines in Shake It Off, of which the couplet containing the purported infringing material occurs three times (six lines), making up less than 10% of the lyric content of Shake It Off. While this is not dispositive either way, the math does not seem to add up. The only way to get to “roughly” 20% is to count the markedly different phrases in Shake It Off (“heartbreakers” and “fakers”), which plaintiffs don’t appear to have done, and to apply the line counting methodology. Plaintiffs also ignore that the phrase “shake it off,” the title and hook of the musical work, accounts for 24% of the word count and approximately 30% of the line count.
This leads to plaintiffs’ claim that Shake It Off infringes on plaintiffs’ lyrics beyond just the “playa” and “hater” lines. Plaintiffs are correct that the last two lines of the four-part lyrical sequence in both works continue the pattern of describing actors engaging in activities. Surely plaintiffs are not claiming a copyright interest in what is indisputably an uncopyrightable idea or concept – actors engaged in activities.
Plaintiffs ignore the differences in the additional phrases themselves, simply claiming that two additional lines with “actors engaging in a type of activity” meets the standard for substantial similarity under copyright law. Admittedly, “substantial similarity” can be a difficult and slippery concept, but here, a simple comparison of the lyrics referenced by plaintiffs reveal the lyrics in question to be quite different: “Heartbreakers” and “fakers” vs “shot callers” and “ballers”; in Shake It Off, the two additional phrases are separated by two additional lines; and both additional actor / activity pairs in Shake It Off contain the highly identifiable repetition of the last word of each phrase, a lyrical device absent from plaintiffs’ work.
Putting aside the issue of whether any of plaintiffs’ lyrics identified in this lawsuit should be subject to copyright protection, plaintiffs’ claims regarding 1) the additional phrases in the “four part lyrical sequence,” and 2) copyright in the concept / idea of the “four part lyrical sequence” described above are simply untenable.
As for plaintiffs’ descriptions of licensing in Beyonce’s Hold Up, off the mega-smash album Lemonade, ummmm ok… But how this bolsters plaintiffs’ claims in a generic and almost certainly preexisting set of phrases is not clear. Lemonade was released by perhaps the biggest and most significant pop musician of the last decade a full 15 years after Playas Gon’ Play was released by a generic and culturally insignificant commodity. Times have changed.
In what appears to be Beyonce et. al. taking all steps to avoid both frivolous and non-frivolous legal actions, they decided to make the credits in Lemonade a “thing” in and of themselves. The credits alone are over 3,000 words long, and feature a staggering list of acknowledgements for collaborators, writers, samples, and the like. As presented, this is to say the least, unusual.
Beyonce’s use of material from the Yeah Yeah Yeah’s Maps, is well documented. There is no mystery as to how the modified Maps lyric got to Beyonce (through Vampire Weekend’s Ezra Koenig sending Beyonce the modified “hold up, they don’t love you…” line via Twitter). The credit on Hold Up mentions Koenig as a writer. The credits also state that Hold Up “[c]ontains Elements of ‘Maps’,” and credits the Yeah Yeah Yeahs. How “elements” are defined or whether “elements” has any legal significance is not clear. What is clear is how the lyric to Hold Up got to Beyonce, and that Beyonce mentioned the source.
Similarly, the Lemonade credits state that Hold Up “Embodies Portion Of ‘Turn My Swag On’[,]” and names the writers. Unlike Playas Gon’ Play, the lyric in question is actually fairly novel. In fact, the likelihood that the 19-word phrase from Turn My Swag On existed in common parlance before or after Soulja Boy’s release is pretty slim.
While an interesting aside, Beyonce’s crediting decisions on Lemonade and plaintiffs’ claims that Beyonce’s unusual approach show an “industry standard practice” to clear lyrics are irrelevant to whether plaintiffs can show a copyrightable interest and violation by defendants in the current lawsuit.
Overall, all of the foregoing is not to say that plaintiffs’ claims are altogether without merit. Perhaps they have a legitimate case in claiming protection over the “playa” “hater” couplet. On the other hand, this may be yet another in the parade of lawsuits based on perhaps dubious legal claims with money seemingly as the motivating factor (note that plaintiffs apparently had no interest in suing Mr. Braham and / or other less well-known artists who have used these phrases). Either way, plaintiffs have a tall order in front of them to prove their case. And in all likelihood, regardless of outcome, resolution of this matter will take considerable time, money, effort and expenditure of other resources on all parts. With all this in mind, please note that this writer is not to blame – this is how the legal system and music copyright law currently function. In more appropriate parlance, “don’t hate the playa. Hate the game.”
District Court Opinion: (PDF)
Plaintiff’s (Appellant’s) Appeal Brief: (PDF)