August 10, 2022 Musicology 1 Comment

Taylor Swift has been fighting this one 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.”

As a forensic musicologist, I can assure you the melodies and harmonies aren’t similar and I can see only this lyrical expression connecting the two works. We can imagine the arguments that will be made, and they’re not so much musical as linguistic, poetic and philosophical. Copyright infringement is a questions of copying and unlawful appropriation. In other words, it comes down to the question of, “Is “playas gon play” an original expression protectable by copyright, and “Did Taylor at some point hear it, and copied it,” knowingly or subconsiously.

In the initial ruling, Judge Michael Fitzgerald, according to Hollywood Reporter, decided 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 he pithily added, “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.”

It’s like when Stevie Wonder wrote in “Higher Ground,” believers will believe, and sleepers will sleep. My friend has a poster on his wall that reads, “Hackers gonna hack.”

In a general sense, yes, it was indeed out there. The 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? I’d say sure there is. And I’m evidently not alone.

Judge Fitzgerald’s 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.

Again though, copyright infringement is unlawful appropriation and copying.

As for unlawful appropriation, how much appropriation protection does that phrase deserve, and how similar is Swift’s expression in “Shake It Off?” When a phrase is just barely original, it gets just barely protected. We call this “thin copyright.” And thin copyright to put it simply is only protected against nearly identical copying.

And as for copying, 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.

As usual, the first question is by far the more interesting one. Much of the time we focus too much on the question of similarity. We notice that two songs share some element or quality. But it’s often more helpful and efficient to look first at, “Is that element or quality original to and protectable by the earlier work?”

In this case, is “playas gon play, haters gonna hate” a protectable expression? Should it be?

What do you think?

Written by Brian McBrearty