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Ninth Circuit Court Ruling in Taylor Swift “Shake It Off” Case May Portend a “Shake Down” of Defendant Copyright Holders and the Lessening of the “Originality” Requirement for Copyright Protection

By Graham Matherne

The Copyright Act protects original works of authorship fixed in tangible form.  17 U.S.C. §102(a).  To be “original,” the expression must have originated with the author and contain a creative element – “a spark that goes beyond the banal or trivial.”  Nimmer on Copyright § 2.05[B](2017).  “Although the amount of creative input by the author required to meet the originality requirement is low, it is not negligible.”  Satava v. Lowery, 323 F. 3d 805, 810 (9th Cir. 2003) (citing Feist Pubs, Inc. v. Rural Tel. Service. Co., 499 U.S. 340, 362 (1991)).

In 2001, Sean Hall and Nathan Butler (“Hall”) composed a song “Playas Gon’ Play,” which contained the lyrics “Playas, they gonna play / And haters, they gonna hate . . .”  In 2014, Taylor Swift co-authored the song “Shake It Off,” which contained the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate . . .” Continue reading