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'I Knew You Were Trouble': Did Taylor Swift Steal Music?

By Steven Ellison, Esq. on September 15, 2022 5:39 PM

Looks like Taylor Swift may be in trouble.

Two songwriters sued Swift, claiming that she stole their tune and lyrics and used them in her Grammy-nominated mega-hit, "Shake It Off." On Sept. 12, Taylor got the bad news that the judge would not kick out the case before trial.

Did Taylor really steal from the two songwriters? A jury of people just like you will decide.

'Playas Gon Play' v. 'Shake It Off'

In 2001, Sean Hall and Nathan Butler co-wrote a song, "Playas Gon Play." In May 2001, the popular group 3LW released it to the public as a single. "Playas" became a hit following its release, spending weeks on Billboard's Hot 100 chart. It was also featured on video countdowns on MTV (back when they had music on MTV).

In 2014, Taylor co-wrote the song "Shake It Off," which she recorded and released to the public in August of that year. "Shake It Off" debuted at number one on the Billboard Hot 100 chart, remained on the chart for 50 weeks, and has sold more than 5 million digital copies as of 2020. Her music video has more than 3.2 billion views on YouTube.

'Sparks Fly'

In September 2017, Hall and Butler sued Swift for copyright infringement, seeking $43 million. They alleged that certain passages of "Shake It Off" are substantially similar to those in "Playa." The court dismissed the case, but an appellate court reinstated it. In July 2020, Taylor unsuccessfully tried to get the case dismissed again.

In July 2021, Taylor tried a third time by filing what's called a motion for summary judgment. The court denied the motion, ruling that there were questions for a jury to decide:

  • Whether the music, structure, and lyrics of "Playa" were "original" and able to be copyrighted.
  • If so, whether the music, structure, and lyrics of "Shake It Off" are "substantially similar" to those of "Playa."

On Sept. 12, the judge announced from the bench that he would not reconsider his ruling and that the case would proceed to trial.

'Call It What You Want'

Hall and Butler claim a copyright in their musical composition. To win, they have to show that they own a copyright and that Taylor infringed it. To do that, they have to show that their work was "original" and that the music and lyrics in the two works are "substantially similar."

Hall and Butler acknowledge that back in 2001, when they wrote "Playa," the concept for their chorus was already part of pop culture. But they say that the structure and combination of the words were original and that Taylor copied them.

'Speak Now'

Go ahead and listen to "Playa" and “Shake It Off." For context, here's a side-by-side of the selections that are at issue:

Playas Gon PlayShake It Off
Playas, they gon' play
And haters, they gonna hate
Ballers, they gon' ball
Shot callers, they gonna call
That ain't got nothing to do
With me and you
That's the way it is
That's the way it is
'Cause the players gonna play, play, play, play, play
And the haters gonna hate, hate, hate, hate, hate
Baby, I'm just gonna shake, shake, shake, shake, shake
Shake it off
Shake it off
Heartbreakers gonna break, break, break, break, break
And the fakers gonna fake, fake, fake, fake, fake
Baby, I'm just gonna shake, shake, shake, shake, shake
Shake it off Shake it off

So? What do you think?

'The Very First Night'

Hall and Butler have a couple of fights here. Taylor's position is that the tune and lyrics of "Playa" are not original and therefore not entitled to copyright protection. Hall and Taylor respond that the phrases "Playas gon' play" and "Haters gon' hate," along with the sequence and structure in which they appear in the chorus, are original. They say that the copyright is in the arrangement, not necessarily the tune and lyrics.

This looks like a close call. Hall and Butler need to persuade the jury that their arrangement was novel back in 2001. It is possible that people sitting on the jury may not have even been born back then. And given how successful "Shake It Off" has been, the phrase "players gonna play/haters gonna hate" is now firmly rooted in pop culture. It may be hard to persuade millennials and Gen Z'ers that there was anything new in their arrangement that could be copyrighted.

'You're Not Sorry'

Say Hall and Butler win the first fight. To win the second fight, they have to get the jury to compare their work to Taylor's to see if they are "substantially similar." Hall and Butler claim that Taylor copied at least seven elements of their arrangement, including the repetition, parallel lyrics, and grammar (e.g., "Playas, they gon' play" vs. "Players gonna play").

Apparently thinking that people can't tell for themselves, the parties hired experts to help the jury analyze their respective works. You won't be surprised to hear that each side found experts who support their position. The trial judge said that it will be up to a jury to decide whether, in light of the conflicting evidence, the works are "substantially similar."

We think it's a toss-up. The jury will hear the songs and get the opinions of people who hold themselves out as music experts. We don't know what their take on the evidence will be, but our gut says that they will be persuaded more by what they hear with their own ears than by what other people, even if they are called experts, have to say about it.

'End Game'

The trial is scheduled to start on Jan. 17, 2023. The stakes are high. Given how successful "Shake It Off" has been, the $43 million sought by Hall and Butler doesn't seem out of the realm of possibility. Given the differences in how the two songs sound, however, we think that Hall and Butler have an uphill battle. We shall see.

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