It may be true, as some songs have averred, that playas gon play, and haters, they gonna hate.
But federal district judges, well, they rule.
They asserted that pop diva Taylor Swift violated their copyright for Playas with her hit Shake It Off (to hear it, click on image above), which became a Billboard No. 1 hit in 2014 and stayed on the charts for 50 weeks. In contrast, Playas “peaked at No. 81 on Billboard’s Hot 100 chart. . . [with] more than 1,000,000 units were sold.”
The judge zeroed in on plaintiff’s claims about infringing lyrics, 3LW having sung: “Playas, they gonna play / And haters, they gonna hate.” Swift, on the other hand, crooned, “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”
Fitzgerald, in a rebuke that cuts multiple ways at the creativity of the works before him, found that:
In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and un-creative to warrant protection under the Copyright Act.
He granted the motion by Swift and other named defendants, tentatively, to dismiss the case, in what might be deemed an artistic Pyrrhic victory. He found that under the FRCP, Rule 12(b)(6) such a dismissal would be proper when the complaint fails to state a claim upon which relief can be granted.
Could plaintiffs sustain their infringement suit at trial? The judge was less than sanguine, looking, for example, at the defense’s dismissal motion, which provided notice of 13 variations of the term playa or hata-haters as found in band names, song titles, and song lyrics.
The court noted that short phrases, though generally not open to copyright, can be protected, but only if they demonstrate high originality in their combination and use. This was not so in songs not only characterizing playas as individuals successful in courtship and haters as those jealous of them but also in noting both groups would do what they will, ignoring each other and crowd approval or disapproval.
Fitzgerald hammered the argument, writing:
The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases ‘playas … gonna play’ or ‘haters … gonna hate,’ standing on their own, no more creative than ‘runners gonna run,’ ‘drummers gonna drum,’ or ‘swimmers gonna swim.’
Further, he noted that uniting the two elements would not give them copyright protection, either, writing at one point, “In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough” for the words to win copyright protection.
The court analogized this case to Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003). In that case, the “selection of clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection.”
Fitzgerald gave the plaintiffs until Feb. 26 to amend their claim before he finally shakes off their claim against Swift.