On remand, district court denies motion to dismiss infringement claim over chorus of Taylor Swift’s hit song Shake It Off, holding that it cannot conclude from complaint alone that doctrine of merger applies to lyrics at issue, and that plaintiffs sufficiently alleged protectable selection and arrangement to support claim.
Plaintiffs Nathan Butler and Sean Hall are co-authors and copyright owners of the popular musical composition Playas Gon’ Play, which was performed and released by the all-girl group 3LW in May 2001. The chorus of Playas Gon’ Play contains the lyrics: “Playas, they gonna play / And haters, they gonna hate / Ballers, they gonna ball / Shot callers, they gonna call / That ain’t got nothin’ to do / With me and you / That’s the way it is / That’s the way it is.”
Taylor Swift, Karl Martin Sandberg and Karl Johan Schuster co-authored the popular song Shake It Off, which was performed and recorded by Swift in 2014. The chorus of Shake It Off contains the following lyrics: “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate / Baby I’m just gonna shake, shake, shake, shake, shake / Shake it off / Shake it off / Heartbreakers gonna break, break, break, break, break / And the fakers gonna fake, fake, fake, fake, fake / Baby I’m just gonna shake, shake, shake, shake, shake / Shake it off / Shake it off.”
Plaintiffs sued Swift, Sandberg, Schuster and others involved in the production and distribution of Shake It Off for copyright infringement based on the purported lyrical similarities with Playas Gon’ Play. The district court initially granted defendants’ motion to dismiss, but on plaintiffs appeal, the Ninth Circuit reversed, finding that the originality of the lyrics could not be determined as a matter of law. While stating that the allegations in the complaint plausibly alleged originality, the Ninth Circuit determined that the district court on remand could consider defendants’ alternative arguments in support of dismissal. (Read our summary of the Ninth Circuit’s decision here.) The district court considered each, and rejected them, denying defendants’ motion to dismiss.
First, the court held that the merger or scenes-a-faire doctrines did not preclude plaintiffs’ copyright infringement claim. Defendants’ argued that the unprotected ideas underlying the alleged copied words merge with those words, thereby rendering them unprotectable. “Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea.” In this case, the court held that it could not conclude from the complaint alone that merger applies, noting defendants’ failure to include authority illustrating that plaintiffs’ lyrics can only be expressed in one way and that the court itself was unaware of any authority where a plaintiff plausibly alleged originality but failed on merger grounds.
Second, the court rejected defendants’ argument that plaintiffs’ selection and arrangement were not sufficiently creative to warrant copyright protection. Defendants argued that plaintiffs’ allegation that they “‘originated the linguistic combination of playas/players playing along with hatas/haters hating’ is not a plausible selection and arrangement claim” because the allegation “falls far short of the required selection and arrangement of ‘numerous’ unprotectable elements.” Defendants also argued that “[p]laintiffs’ claim of protection in combining just players play and haters hate, in the absence of elements [that] are particularly selected and arranged[,] amounts to nothing more than trying to copyright commonplace elements.”
The court was not convinced, relying on the Ninth Circuit’s reversal of the district court’s dismissal, in which the Ninth Circuit held that the complaint plausibly alleged originality. The court also held that defendants’ arguments regarding the number of unprotectable elements was foreclosed by Ninth Circuit precedent, which distinguishes between literary works and physical objects with respect to determining the number of unprotectable elements required to result in a protectable composition. Defendants notably did not rely on any case law comparing literary works, of which lyrics is undoubtedly one. The court held that in this case, plaintiffs plausibly alleged at least two, and perhaps as many as nine, creative choices copied by defendants.
Finally, the court held that plaintiffs sufficiently alleged similarity. Defendants argued that because a narrow range of available creative choices exists, plaintiffs’ and defendants’ uses of public domain elements must be virtually identical to be actionable, and in this case they were not. The court rejected this argument, finding that, at this stage, it could not determine that there is a “narrow range of available creative choices” and therefore the “virtually identical” standard does not apply. The court also reasoned that defendants’ argument fails because a “selection and arrangement copyright is not always thin,” and because the court cannot determine at this stage that the lyrics are not substantially similar. Accordingly, on remand, the court denied defendants’ motion to dismiss.
Summary prepared by Linna Chen and Ava Badiee