Taylor, Call Me

Girlfriend, I feel for you, I really do. Why can't people just accept the fact that you are a music genius? You know why they hate you? It's because they can't be you. If you win the case, they'll say you are banal, uncreative, and unoriginal. And if you lose the case, you will have plagiarized and have to pay tons of $$$ damages. It's just not fair.

You are probably familiar with Taylor Swift's megahit, "Shake It Off." If not, here is an amusing video of the song. You might also be familiar with 3LW's song, "Playas Gon' Play." You can peruse the video here.

The issue coming to jury trial next year is this: Songwriters for 3LW are accusing Ms. Swift of taking lyrics from their song. If she did, it could be a copyright violation. The case is interesting because it tests the extent of copyright protection. If an artist takes phrases that are currently in popular use and uses them in a work, does the artist own those phrases? In particular, the 3LW tune uses variations on the phrases "players gonna play" and "haters gonna hate." The song by Ms. Swift also uses variations of those phrases.

District Judge Michael W. Fitzgerald had previously rejected the case because in his view the lyrics in her song were too "banal" to be protected by copyright. He cited no fewer than 13 earlier songs with similar phrases and ruled that phrases like "haters gonna hate" were common in the culture. As he concisely noted, "The concept of actors acting in accordance with their essential nature is not at all creative; it is banal." Furthermore, he noted, "In sum, the lyrics at issue....are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act."

In an appeal by Sean Hall and Nathan Butler, the original songwriters, the decision was reversed and landed back on Judge Fitzgerald's desk. He rejected Ms. Swift's request for a summary judgment dismissal and decided to allow the case to be heard by a jury. He noted, "Even though there are some noticeable differences between the works, there are also significant similarities in word usage and sequence/structure.... The court cannot presently determine that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement, or poetic structure between the two works."

In the end, I suspect the case will be decided on the extent of the perceived plagiarism. The phrases are essentially the same, and an incidental use is probably okay. But if the use is found to be flagrant, then that could be copyright infringement.

As noted, either outcome is not exactly an endorsement of Ms. Swift's musicality. Door Number 1 has banality behind it, and Door Number 2 has plagiarism behind it. Given the fact that "Shake It Off" was Ms. Swift's biggest-selling single, and the monetary damages could be substantial, Ms. Swift would certainly choose Door Number 1. Of course, the case could be settled out of court before it goes to trial.

Anyone who deals in words for a living is probably torn. Authors want their words to be protected by copyright, but also don't want to fear that using common phrases could lead to a lawsuit. Personally, the latter concerns me more.

Anyway, Taylor, call me — I'm here to help. Meanwhile, keep your chin up, girlfriend. Look on the sunny side. Every cloud has a silver lining. There's no reason to cry over split milk. Your lawyers will sock it to them. You know what they always say — haters gonna hate.

dommyluc's picture

Yeah, that's one of the first words that pops into my mind when I think of Taylor Swift.

FDasein's picture

Call me… creepy

I sent the link to the article to my 22yo daughter. She replied that “this old guy”, Mr. Pohlmann, is very creepy. Here’s en extract of her mail “would he [Pohlmann] have said the same thing to Elton John or to Drake in a similar situation? That’s the old creepy way of thinking, how come this publication endorse such flagrant and disgusting propositions on an article about a legal issue?” I apologized for sending her an article that I did not read, she’s been a fan of Miss Swift for years.

Now that I’ve read the article, I must say you’re a creepy dude Mr. Pohlmann. With all the efforts done by -well- everybody to rid the world of harassment, it is surprising to read the title and the end of your article.

Shame on you, shame on your editors to allow this.

hk2000's picture

I have a feeling your daughter and you are not seeing eye to eye on so many more ways than this, and you're just trying to please her- in a weird way.

Billy's picture

Ahh, come on Creepy, this is an innocent tongue and check piece. Take a breath and get a life. You wonder why 70 million people voted that special dude in the last election despite being actually creepy himself (with 25+ women saying he is)? It is because overly sensitive people like you keep making the world more and more difficult to live in. Ms Swft has made a trillion or so dollars making herself known to the world, silly things like this are a small price to pay. Save your concern for women who really have been harmed or in danger. Sorry, I can't stand crazily woke people (and I am a pinko commie myself, yet I still think this stuff has gone too far and it is going to cost this country dearly very soon because small minded people who hate your craziness can't see the big picture)

David Vaughn's picture

I completely agree with you. It's why humor has basically died because everyone takes everything so seriously and have forgotten how great comedy always has a bit of the truth sprinkled in...that's what makes it funny.

Dealzguy18's picture

She stole it that’s end of story. She has the money power to pay for it… whyTF folks get serious? Get a life and move on. Calling someone creepy shows the innate hypocrisy in such people. Of course even if Sir Elton did it , it needs to be called out.

John_Werner's picture

I'll give the judge credit. His earlier dismissal was actally based on a bit of actual reasoning citing no less than about a dozen other songs and common colloquial phrasing. Also to his credit he will allow a jury trial since it should settle any doubts or his own biases (he knows his opinion has merit yet will allow other opinions). So Ken tries to find humor in this and gets called "creepy. Apparently this is based on folks who are far too serious, making this something else entirely. As usual lawyers win no matter what, but I think these things get carried too far and the creepy idea just underscores it.

trynberg's picture

This wasn't creepy, it's just Ken's sense of humor. Perhaps regularly reading Ken would have clued some people in? Would he have written a different column for Drake or Elton? Of course, Ken would have come up with a (different and related) humorous slant for those artists.