So About That Taylor Swift Lawsuit. . .

Copyright Law

By now I am certain everyone has heard about the recent copyright infringement suit filed against Taylor Swift over her song “Shake It Off“. I am even more certain that everyone has heard “Shake It Off” – probably too many times. Even though the complaint was dismissed last week by the district judge presiding over the case, I still find it worth mentioning.

On October 28, 2015, Jessie Braham (who also goes by “Jesse Graham”) filed a complaint in the Central District of California against Taylor Swift (and Sony, ATV Music Publishing, Big Machine, Shellback, and Matt Martin). Braham was not represented by an attorney. In his complaint, Braham accused Swift of infringing his intellectual property rights in his 2013 song “Haters Gone Hate.” The complaint stated that if Braham had not written his song, “Taylor Swift would not have written the song Shake It Off”. Braham requested 42 million dollars in damages and asked to receive songwriting credit on “any new copies being printed”. Exhibit A to the complaint was text from the website, in which Swift explains her inspiration for Shake It Off. This has the unintended effect of undermining Braham’s allegations that Swift stole the song from him. Braham also included in the complaint a copy of his copyright registration for “Haters Gone Hate”, which was filed with the U.S. Copyright Office in February 2013.

It is a testament to Swift’s considerable fame that this pro se lawsuit, which really had no likelihood of success on the merits, garnered as much media attention as it did. Indeed, the suit was short lived. On November 10, a judge for the Central District of California dismissed the complaint for failure to state a claim upon which relief may be granted.

To recover for copyright infringement, a plaintiff must show that he has ownership of a valid copyright, and that the defendant copied protected material from that work, violating one of the exclusive rights granted by the copyright act. Without direct evidence of copying, the plaintiff can establish that copying occurred by showing that the defendant plausibly had access to the copyrighted work and that the two works are substantially similar.

The court here found that Braham’s complaint was factually deficient and did not adequately state exactly which lyrics he claims Swift “stole”. However, it seems clear that Braham is suing over Swift’s use of the phrases “Players gonna play”, “Haters gonna hate” and “Fakers gonna fake”. Admittedly, these phrases do appear in both songs in some form. However, as the court notes, even if Braham were able to show copying by Swift, “copying of something is not enough.” The copying must be of some protected material. Given the widespread use of the phrases in questions – both before and after Braham released his song – it would be difficult for Braham to show valid copyright ownership in these phrases in isolation.

Indeed, the phrase seems to transcend musical genre. In 2000, R&B group 3LW released their song “Playas Gon’ Play”. In 2014, country artist Eric Church used the phrases in his song “The Outsiders”. And of course, Taylor Swift used them in her pop song “Shake It Off”.

The court here did not dismiss the lawsuit with prejudice – Braham can still re-write and re-file the complaint and try again. However, the court warns that given the history of the phrases in question, he should reconsider claiming that they are original to him, or risk being subject to Rule 11 sanctions for making baseless claims.

When I look at Braham’s complaint in this case, I have to wonder what his intentions were in pursuing legal action. Was this a nuisance lawsuit filed in hopes of receiving some form of settlement or increased exposure? Or was this a case of an artist unfamiliar with copyright law who genuinely believed he had a cause of action but could not afford legal counsel to advise him otherwise? From what I have read, public opinion seems to suggest that the former. But I would like to keep an open mind.


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