New Day Worldwide v. Taylor Swift

Comment by Ha Huynh

In this dispute, based on an increasingly typical allegation of verbal similarity between pop songs, LA-based soul artist Jesse Graham brought the same infringement claim against Taylor Swift in four actions in the same district. All were dismissed and two dismissed with prejudice. Graham first filed a claim in 2015 against Swift in Braham v. Sony/ATV Music Publishing, et al., (opinion linked below) alleging Swift’s hit Shake It Off lifted a “22 word phrase” from Graham’s song Haters Gonna Hate and that the “phrase string is used over 70+ times during the song.” While the fatal flaw of Graham’s (poorly drafted) complaint is its failure to identify the phrase allegedly misappropriated by Swift’s team (thus failing to satisfy Rule 8 of the Code of Civil Procedure) the court also noted two major hurdles facing Braham’s copyright infringement claim. The court first recognized the widespread usage and variation of the phrases “haters gonna hate” and “players gonna play,” which puts their originality in doubt. More importantly, the court suggested that the rhetorical repetition following the phrases distinguishes Shake It Off from Graham’s song.

In the suits following Braham, Graham’s complaints were all dismissed due to repeated failure to serve the defendants. In the latest opinion New Day Worldwide v. Taylor Swift, Judge Andre Birotte Jr. further noted that Graham failed to establish his having a registered copyright for Haters Gonna Hate, with his complaint stating only a bald claim of copyright infringement. Judge Birotte Jr. also cautioned Graham against instituting the same suit again, or risk being declared a vexatious litigant. Undeterred, Graham proceeded to file a notice of appeal to the Ninth Circuit. Given his various failed attempts at the District Court, Graham stands but a slim chance of success at the Ninth Circuit.

While Taylor Swift may successfully shake off past and possibly any future claims from Graham, Swift’s team is facing another challenge involving the same phrases in the vexatious suit Hall v. Swift.

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