Taylor Swift has been fighting this particular battle for years. Songwriters Sean Hall and Nathan Butler sued Swift in 2017 because her biggest hit song of them all, “Shake It Off,” in their view infringes upon their 2001 hit, “Playas Gon Play,” recorded by 3LW.
“Shake It Off,” of course includes the lines, “cuz the players gonna play play play play play and the haters gonna hate hate hate hate hate…” And Hall and Butler’s lyric includes “the playas gon play, them haters gonna hate.”
The melodies and harmonies aren’t similar; it is just this lyrical expression that connects the two works. So you can imagine the arguments that will get made, and they’re not so much musical as linguistic, or poetic, and perhaps not even so much that as philosophical. It comes down to, “Is “playas gon play” an original expression protectable by copyright? And can we infer that Swift probably heard “playa gon play,” and copied the protected expression?”
The initial ruling was “no.” Judge Michael Fitzgerald, according to Hollywood Reporter, ruled, that by the time Hall and Butler penned “Playas Gon Play,” “American popular culture was heavily steeped in the concepts of players, haters, and player haters.” And then pithily added, “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” Stevie Wonder put it in Higher Ground, believers will believe, and sleepers will sleep. My friend had a poster on his wall that read, “hackers gonna hack.”
In some sense, it was indeed out there. Just one example, Notorious BIG had a record called “Playa Hater” well before “Playas Gon Play” came out. But Hall and Butler’s lyric, “the playas gon play, them haters gonna hate” is a phrase, one thought following the other. Is there not a modicum of originality in there? Sure there is. And the initial ruling was reversed and the question of whether this phrase is protectable expression was deemed better suited to review by jury than by summary judgment.
But how much, if any, protection does it deserve, and how similar is Swift’s expression in “Shake It Off?” Just as interesting, I think, is trying to predict whether this goes to trial or gets settled.
This week, Swift fought the “copying” side of the issue. She declared that she never heard “Playas Gon Play,” before writing “Shake It Off,” so she’s trying to get out ahead of the question of whether she copied it. You can’t copy what you’ve never heard, and you can’t infringe if you didn’t copy. She says she never heard it.
The other question is the more interesting one: Is “playas gon play, haters gonna hate” a protectable expression? Should it be? Selfishly I’d love for this to go to trial and have the issue argued. We’ll see.