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

Jesse Braham, who is suing Taylor Swift for 40 million, surely 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.

And of course, here’s Taylor’s megahit.

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

This isn’t as much of a musicological question as it is a poetry or some other authorship area. I look at lyrics in the context of music all the time, but in the absence of a musical context, I’d be looking to some other sort of expert for help with this.

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

Infringement, first of all, 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, there’s not much here 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.

As to “access,” Graham’s track has a good number of views on Youtube. But offhand, do you think Taylor Swift heard it. I don’t.

“Substantially similar?” Only lyrically. The notes are dissimilar, that part I can comfortably weigh in on as an expert.

Is “Haters Gon Hate” protected by copyright, the song, that is? Sure, it is. But the phrase alone? And in versions with the “gone,” without it, and with variations? And assuming, yes, it’s protected, is it broadly protected to matter here? I’m pretty sure Swift said “gonna;” as in “playas gonna hate.” Does that matter?

Graham’s case is 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 the earliest use of the idea I can find.

The 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.

Stevie Wonder, all across the classic, “Higher Ground:” Lovers love, believers believe, sleepers sleep, and so forth.

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, it’s an obstacle.

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 perhaps not vested in its use of the phrase, “haters gone hate.” That had already been around a while generally. But specifically? We’ll see.

(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