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IP/Entertainment Case Law Updates

Braham v. Sony/ATV Music Publishing

In copyright infringement suit targeting Taylor Swift’s hit song “Shake It Off,” magistrate judge recommends dismissal of pro se plaintiff’s claim, finding plaintiff failed to plausibly allege that Swift’s repeating phrases “Haters gonna hate, hate, hate, hate, hate” and “Players gonna play, play, play, play, play” infringed plaintiff’s copyright in his song “Haters Gone Hate.”

Pro se plaintiff Jesse Braham sued Sony/ATV Music Publishing, Taylor Swift and others for copyright infringement, alleging that Swift’s pop hit “Shake It Off” infringed the copyright to his song “Haters Gone Hate” and seeking $42 million in damages. Braham requested leave to proceed in forma pauperis (without paying a filing fee). The magistrate judge recommended that the district court deny plaintiff’s request. 

Taking judicial notice of the content of Swift’s “Shake It Off,” the magistrate judge found that Braham did not identify the constituent elements of “Shake It Off” that had allegedly been copied from his song. Braham failed to identify the repeating 22-word phrase from his song that allegedly constituted 92 percent of the lyrics of “Shake It Off” and was allegedly repeated 70 times.

The magistrate judge also expressed doubt that Braham would be able to plead that the two songs were substantially similar, and cautioned Braham that he would face an “uphill battle” if he were to proceed with his complaint or file an amended complaint. The court found that only three lyrical similarities — at most — existed between “Haters Gone Hate” and “Shake It Off,” and that the songs also “appear to have different melodies and belong to different musical genres.” The magistrate judge also cited various Internet sources demonstrating that the lyrics “Haters gone hate” and “Players gone play” were in widespread use and are not original to Braham. 

The magistrate judge concluded her decision with a paragraph that made liberal use of lyrics from several of Swift’s songs.

At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space — one that requires Braham to do more than write his name. . . . Braham may discover that mere pleading Band-Aids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit.

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