September 25, 2017 Featured, Latest News, Opinion No Comments

Does Taylor Swift’s “Shake It Off” infringe upon the copyright of “Haters Gone Hate?”

 

We are going to take a quick look at what’s most important to this case and discuss what “prior art” means in the world of copyright and copyright infringement.

Jesse Graham, who is suing Taylor Swift for 40 million, likely believes that he has a point. He used a phrase in his track, “Haters Gone Hate” and Taylor Swift, a few years later, used the same phrase.

That track is on Youtube.

The two songs have some lyrics in common. But is that infringement?

Infringement, to make things super simple, requires that Swift might reasonably be believed to have heard Haters Gone Hate. That’s called “access.” And the songs must be “substantially similar.” And lastly the thing supposedly infringed upon must be protected by copyright.

As to access, Graham’s track has a lot of views on Youtube, but it’s a stretch to think Taylor Swift heard it. Is it possible? Yes.

“Substantially similar?” Not beyond the fact that it has the playas and hatas thing in common, no. The melodies are completely dissimilar.

Does copyright protect “Haters Gone Hate?” Yes, but not that lyric.

Graham is possibly going to run into a concept called, “prior art.”

He wrote “Haters Gone Hate” a few years before Taylor Swift wrote “Shake It Off” but about ten years after a trio called 3LW wrote the other side of that coin, “Playas Got’ Play.”

https://youtu.be/dD9A8x_xn5g

And that’s from the early 2000’s, a few years after Ice-T wrote a tune that may have first made the phrase known, “Don’t Hate The Playa.”

People have been saying and singing “playas and hatahs” and “playa hatahs,” and “playas gonna play and hatas gonna hate, and hackers gonna hack” and a dozen other twists on this for a long time. The late great Stuart Scott made a thing of playas and hatas every single day on ESPN TV throughout the 2000’s. Boo-yah to that.

In order to enjoy copyright protection, your work must be original. “Prior Art” is work that came before yours and therefore attenuates your originality.  If you put out a track in 2013 that employs a catchphrase that has been broadly available to the public for a decade and then you try to claim copyright infringement, you’ve got a difficult argument. You don’t want to be sued by those who used the catchphrase before you, so why would you expect copyright protection for yourself. More often than you’d think, laws are sensible.

So while “Haters Gone Hate,” is an original work, its originality and copyright protect-ability is not vested in its use of the phrase, “haters gone hate.”

MUSICOLOGIZE SAYS: Taylor Swift has little to worry about from this lawsuit.

Written by brianmcbrearty