Last November, a federal judge dismissed a copyright lawsuit accusing Taylor Swift of stealing lyrics to “Shake It Off” from a California songwriter. But this was no ordinary dismissal order—in rather epic fashion, the judge channeled her inner T. Swift and heavily quoted the pop star’s lyrics in holding that the defendants had successfully “shaken off” the lawsuit. Braham v. Sony/ATV Music Publ’g, No. 2:15-cv-8422-MWF (GJSx), slip op. (C.D. Cal. Nov. 10, 2015).
The dismissal order came just two weeks after Jesse Braham filed a complaint alleging that Taylor Swift’s song, “Shake It Off,” infringed his copyright in his 2013 song titled, “Haters Gone Hate.” Braham claimed that 92 percent of Swift’s lyrics were lifted from his song. Braham sought $42 million in monetary damages, as well as the addition of his and his publisher’s name to future copies of the song for sale.
U.S. Magistrate Judge Gail J. Standish disagreed, finding that Braham’s complaint did not rise above the speculative level. She dismissed the case without prejudice in an order that illustrated her knowledge of the pop queen’s ultra-catchy lyrics. Quoting two of Swift’s No.1 hits, “We Are Never Ever Getting Back Together” and “Bad Blood,” Judge Standish stated: “At present, the court is not saying that Braham can never, ever, ever get his case back in court. But for now, we have got problems, and the Court is not sure Braham can solve them.” Id. at *11.
Judge Standish left open the possibility of an amended complaint, but expressed concern that Braham may not have a protectable copyright interest in the “Haters Gone Hate” lyrics. To qualify for copyright protection, the subject matter must be original to the author. 17 U.S.C. § 102(a). Judge Standish questioned the originality of the lyrics that Braham alleged Swift infringed, citing the early 2000s hit by 3LW, “Playas Gon’ Play.”
Judge Standish suggested that evidence showing that the phrases “haters gonna hate” and “players gonna play” have essentially “gone viral” dating back to 2008 may also demonstrate that those lyrics are not original components of Braham’s work. The Judge identified use of the phrases in Urban Dictionary, Google Trends, and Internet memes in cautioning Braham to consider whether filing an amended complaint would conflict with his duty under Federal Rule of Civil Procedure 11 not to make a factually or legally baseless claim. Though likely unintentionally, Judge Standish may have just opened a huge loophole in the copyright laws—in the age of the Internet, does the public have the power to take away what was once original content’s copyright protection merely by making it go viral?
Judge Standish concluded her dismissal order by mashing up three Taylor Swift tunes: “As currently drafted, the Complaint has a blank space—one that required Braham to do more than write his name. And, upon consideration of the Court’s explanation . . . Braham may discover that mere pleading Band-Aids will not fix the bullet holes in this case. At least for the moment, Defendants have shaken off this lawsuit.” Id. Props if you can name them all.