Don’t Get On the Wrong Side of Taylor Swift in a Copyright Case!

by Weintraub Tobin

Taylor Swift has been in the news a lot over the last year or so. She is phenomenally successful. Her hit album “1989” concert tour was the highest grossing tour in the world in 2015 (over $250 million) and the highest grossing tour ever in North America (smashing the previous record held by the Rolling Stones’ 2005 tour).

As she said in a Wall Street Journal Op/Ed piece in 2014, Swift believes songs are valuable art that should be paid for. Swift means what she says. She protects her intellectual property. She has become a strong voice for music artists in the fight against those who distribute music for free without permission (otherwise known as copyright infringers), especially Internet music streaming services. When it comes to copyright, Swift has proven herself to be a force to be reckoned with in the music industry – she is not afraid to go after anyone.

For example, in late 2014, Swift’s team directed China’s largest music streaming services to take down her entire catalog of music from all free services. In a country where free music is almost viewed as an entitlement, Swift took her music out of the picture.

Also in 2014, Swift got into a dispute with Spotify, a commercial streaming music service. Swift objected to the very low royalty rates (less than one cent per stream) that Spotify pays for the music it streams, with most of the royalty going to the record labels, not the artists. Swift insisted on certain conditions for Spotify to stream her music, but Spotify refused to agree. So, Swift pulled her music from Spotify.

In June 2015, Swift took on Apple. Apple had planned to begin offering a new music streaming service. During a three-month trial period, Apple intended to offer subscribers the service for free. Apple wasn’t going to pay the musicians, writers, or producers any royalties during this period. Swift wrote Apple a letter, telling them they could not use her “1989” album, and asking Apple to pay for the music it intended to stream. After all, she pointed out, artists don’t ask Apple for free iPhones. Without even filing a lawsuit, Swift got her way. Apple agreed to pay all those whose music they streamed, and “1989” was included.

More recently, Swift ended up on the other side of a copyright battle. In October 2015, a songwriter named Jessie Braham, representing himself, sued Swift and Sony/ATV for copyright infringement in the U.S. District Court for the Central District of California. The plaintiff alleged that Swift’s hugely successful song, “Shake It Off,” from her “1989” album, infringed a song Braham had written. Specifically, Braham alleged that Swift’s lyric “haters gonna hate, hate, hate, hate, hate” was stolen from his 2013 song entitled “Haters Gone Hate.” Braham sought $42 million in damages.

Before any appearance in the case could be made by Swift or Sony/ATV, the court, on its own motion, dismissed the case. The plaintiff had requested to appear in forma pauperis (without paying court fees), giving the court the right to review the complaint to determine if it stated a claim. The court applied the same standard used for a motion to dismiss under Federal Rules of Civil Procedure, Rule 12(b)(6).

In order to state a claim for copyright infringement, a plaintiff must allege both that they own a valid copyright and that the defendant copied original elements of the plaintiff’s copyrighted work. The court found that Braham had alleged a valid copyright for his song, as he had registered the copyright for the song. As to the second requirement, however, the court found the plaintiff’s allegations lacking.

In his complaint, Braham referred to a 22-word phrase from his song that he claimed Swift had stolen, alleging that she repeated the phrase 70 times and that it comprised 92% of “Shake It Off.” The court listened to “Shake It Off” and reviewed the plaintiff’s lyrics, and did not find any such phrase. The court noted that the two songs had different melodies and were of different genres. The court performed her own Internet research and found that the plaintiff’s lyric “haters gone hate,” and another phrase the plaintiff had said was stolen, “players gone play,” had been used in many other works by other authors. Therefore, the court held that the plaintiff’s allegedly stolen phrases were not original and could not support a copyright infringement claim. In fact, the court went so far as to caution the plaintiff to be careful of Rule 11 in considering whether to amend his complaint, suggesting that his claim against Swift was baseless.

The court next addressed the plaintiff’s allegation that Swift had copied his song. Because direct evidence of a defendant’s copying is rare, copying can also be proved by evidence that the defendant had access to the plaintiff’s copyrighted work and that the plaintiff’s work and the defendant’s work are substantially similar. The court explained that access is almost never a problem, given the Internet; because Braham’s song was on YouTube, it was accessible to the defendants.

As to substantial similarity, however, the court found that Braham had a problem. The Ninth Circuit Court of Appeals’ test for substantial similarity has two parts: an “extrinsic” test and an “intrinsic” test. L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012), as amended (June 13, 2012). The extrinsic test, which can be determined as a matter of law, is met if the two works are objectively similar in ideas or expression. Id. The intrinsic test is a subjective test for the factfinder to determine and is met if an ordinary, reasonable audience would think that the two works are substantially similar. Id. In applying the extrinsic test, the court found that Braham’s song and “Shake It Off” were not objectively similar. Braham’s song used short phrases, while a key component of “Shake It Off” was the repetition of the last word of the phrase (“haters gonna hate, hate, hate, hate, hate” and “players gonna play, play, play, play, play”).

Under the standard for a motion to dismiss as set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the court held that Braham had not pled facts sufficient to allege a plausible claim for copyright infringement. The court denied the plaintiff’s request to proceed in forma pauperis, but said that plaintiff could continue with his suit if he paid the filing fees. In her conclusion, borrowing from Swift’s own lyrics from several other hit songs, the court emphasized the deficiencies in the plaintiff’s complaint:

“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. And, upon consideration of the Court’s explanation in Part II, 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.”


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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