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

How about a quick look at what’s most important to this case and at the importance of “prior art” 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 expression.

That track is on Youtube.

The two songs have some lyrics in common, and I think nothing other than that. Is that infringement? Might it possibly be?

The thing is, this isn’t a musicological question. This is just lyrics or poetry or some other authorship area. I look at lyrics in the context of music all the time, but in the absence of that context, I’d be looking to some other sort of expert.

Just for the sake of argument though… let’s look at it in layperson terms.

“Infringement,” 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 forensic musicologists like me are asked to evaluate, but again, here there’s not much that’s in my wheelhouse. 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 here,

not to imply the others are slam dunks.

So really quickly:

As to “access,” Graham’s track has a good number of views on Youtube. But offhand, it seems like a stretch to think Taylor Swift heard it. Impossible? No.

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

Does copyright protect “Haters Gone Hate?” The song, “Haters Gone Hate? Sure it does. But the phrase alone? And in versions with the “gone” and without it or with variations? Assuming it’s protected at all, is it broadly protected? I”m pretty sure Swift said “gonna;” “playas gonna hate.”

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.”

So those guys might have an earlier established claim on this lyric.

And even 3LW’s track is from the early 2000’s, a few years after-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 hatahs 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.

To enjoy copyright protection, an expression needs to be original. The phrase “Prior Art” refers to work that came before yours and attenuates its 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 problematic 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, they are.

So while “Haters Gone Hate,” is an original work, its originality and copyright protect-ability is probably 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.)

(update 10/2019, it got untossed on appeal.)

Written by Brian McBrearty