Excellent reasons, in fact.
Back in December I wrote that Marasco v. Taylor Swift was and is doomed. Today Judge Aileen Cannon dismissed it with prejudice, and if I do say, she did it up right.
My complaint the first time around — that the case had already collapsed once, but it collapsed on “service.” The plaintiff, pro se, kept bouncing off Swift’s security detail, like on TV, and the thing wilted on procedural clutter rather than on anything about the claims. From the musicologist’s chair, that’s irksome. The real story is sitting right there in the material, or, in this instance, the total absence of it. I said at the time I hoped the refiling would move forward far enough to be dismissed for the enduring reasons.
That’s what happened.
Cannon found two independent grounds, either of which would have been fatal, and nailed both. First, the poems contain no protectable expression. Second, even setting that aside, Marasco failed to plausibly plead copying. And the language of the holding sounded to me like me, only better. What Marasco alleged amounts, at most, to ideas, metaphors, contexts, and themes; none of those is a proper subject of copyright protection.
But here’s the part I want to sit with, because it’s a move I make regularly. Cannon didn’t stop at “the works aren’t similar enough.” She went the extra teaching step: even if you assume access, and even if you grant that Swift read the poems, even if you grant she took inspiration from them, there. is. still. no. case. Access (the question of did Taylor read the plaintiff’s poems in the first place) is for all sorts of reasons, the initial battle ground. But the strong and enduring version says access doesn’t matter, because nothing protectable was common to both works. Cannon wrote the strong version.
That distinction is the whole ballgame, and it’s why access-and-similarity hand-wringing so often misses the point. Grant the plaintiff every favorable assumption you can stomach. Hand them access on a platter. Then ask the only question that counts: what protectable expression crossed from one work to the other? The answer here would be nothing, and it was nothing before access ever entered the conversation. Inspiration isn’t infringement. Thematic adjacency isn’t misappropriation. A court shouldn’t adjudicate the feeling that someone else’s song is secretly somehow about you.
No one owns the broad themes that make up pop lyricism, common in poetry and song long before either of these writers picked up a pen. Copyright doesn’t reach them, and it shouldn’t. It protects the next layer up — distinctive lyrical phrases, melodies, rhythms, harmonies in a distinctive sequence and this, precisely so that the underlying ideas stay free for the next writer because we want more. Cannon left it right where it belongs.
Cannon noted the plaintiff conceded one of her poetry books had sold roughly three thousand copies worldwide and that none of them were being actively promoted, which makes the access theory a stretch. And that’s clear and necessary, but I’m glad she held it wouldn’t matter even if the access theory held up.
I’ve written before that a large part of my actual job is easing clients out of the feeling that their emotional blueprint, message, philosophy, and other creative underpinnings were taken from them. It’s a human instinct but a misplaced one, and it’s the engine of too many suits that never should have been filed, much less sustained. This one, a good example. Twenty-five million dollars demanded, and not one bar of shared protectable material to hang it on.
In Variety’s coverage of the dismissal, Chris Willman quoted that December column alongside Cannon’s holding.
So the case is over, and this time it’s over correctly. It was nothing. Whoever encouraged the plaintiff did them no favors. This was nothing long before anybody went looking for a process server.
Brian McBrearty is a forensic musicologist and music copyright expert witness. He provides clearance opinions, expert reports, and expert witness testimony in music copyright matters. His analysis has been cited in the Pepperdine Law Review, on NPR’s All Things Considered, and by Reuters, BBC, and Courthouse News. He is the founder of Musicologize.
