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’ll take a quick look at what’s most important to this case and touch upon what “prior art” means in the world of copyright and copyright infringement.

Jesse Braham, who is suing Taylor Swift for 40 million, likely believes that he has a fair point. He used a phrase that he thinks was pretty unique 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 and that’s about it. Is that infringement? Could it possibly be?

“Infringement,” to make things super simple is a bit of a three legged stool. For one thing, it requires that Swift might reasonably be believed to have heard “Haters Gone Hate.” That’s called “access.” Secondly the songs must be “substantially similar.” That’s the sort of thing musicologists like me are asked to evaluate. Third, critically, the thing supposedly infringed upon must be protected by copyright. This last “leg” is possibly the one that’s gonna get in the way.

Not that the others are slam dunks.

As to access, Graham’s track has a lot of views on Youtube. Seems like quite a stretch to think Taylor Swift heard it. But it’s not impossible.

“Substantially similar?” Only lyrically. The melodies are completely dissimilar.

Does copyright protect “Haters Gone Hate?” The song? Sure. But the phrase?? With the “gone” and/or without? How broadly are you expecting to be protected? Pretty sure she said “gonna.” This is sketchy at best, don’t you think?

Let’s look at a pitfall or two.

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

He wrote “Haters Gone Hate” just 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

So those guys might have a more protectable claim on this.

And even 3LW’s track is from the early 2000’s, a few years after Ice-T wrote a tune, “Don’t Hate The Playa,” which is perhaps the earliest use of the idea we can find.

My point is that 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 playahs and hatahs nearly every day on ESPN TV throughout the 2000’s. Boo-yah to that by the way. Miss the hell out of Stuart Scott.

In order to enjoy copyright protection, an expression needs to be original. The phrase “Prior Art” refers to work that came before yours and 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. Just as you don’t want to be sued by those who used the catchphrase before you, you shouldn’t expect copyright protection for yourself.

More often than not, laws are sensible. No really.

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.” That had already been around a while.

All of which to say, Taylor Swift likely has very little to worry about from this lawsuit.

(musicologize update 2/2018: Taylor Swift had little to worry about from that lawsuit. It got tossed.)

Written by brianmcbrearty