Taylor Swift wants a federal judge to dump his recent ruling allowing a copyright infringement lawsuit over her hit song “Shake It Off” to proceed to trial.
The singer argues in a new court filing that the judge failed to address something called the “extrinsic test” when he decided Dec. 9 that the two songwriters who claim she stole their lyrics and concept had presented a “genuine dispute” that should be resolved by a jury.
Songwriters Sean Hall and Nathan Butler have alleged in their underlying complaint that their 2001 song “Playas Gon’ Play” for the all-female R&B trio 3LW is substantially similar to Swift’s 2014 pop anthem, especially in its arrangement of the phrases “playas gonna play” and “haters gonna hate.”
The lawsuit, originally filed in 2017, was initially dismissed by U.S. District Judge Michael Fitzgerald in 2018, but it was revived on appeal and returned to his court by the Ninth Circuit Court of Appeals.
In his ruling three weeks ago denying Swift’s request for summary judgement, Judge Fitzgerald said that while Swift’s side did make some “persuasive arguments,” the court found “numerous factors” still met the legal threshold for “potential substantial similarity between the lyrics and their sequential structure as framed by plaintiffs.”
In the new defense motion filed Dec. 23 that asks Judge Fitzgerald to reconsider his ruling, lawyers for Swift and her publishing partners say the “extrinsic test” and established Circuit law “mandate” that the court focus only on protectable elements while filtering out and disregarding phrases in the public domain.
“Both works use versions of two short public domain phrases — ‘players gonna play’ and ‘haters gonna hate’— that are free for everyone to use,” the new motion states, arguing that while both songs also use repetitive phrases called tautologies, those aren’t protected either.
“The presence of versions of the two short public domain statements and two other tautologies in both songs — a commonality that the court has noted — simply does not satisfy the extrinsic test. Otherwise, plaintiffs could sue everyone who writes, sings, or publicly says ‘players gonna play’ and ‘haters gonna hate’ alone with other tautologies. To permit that is unprecedented and cheats the public domain,” the new motion argues.
A hearing on the request for reconsideration is set for Feb. 7 in Los Angeles.
“We feel there is no basis for reconsideration, and that this is just a music mogul and her machine trying to deny our client justice by outspending a fellow lower-income artist. Totally uncool among artists,” Gerard Fox, a lawyer for Hall and Butler, said in a statement to Rolling Stone on Monday.
In 2018, after the case was successfully appealed following its dismissal, a rep for Swift likened the lawsuit to a shakedown.
“These men are not the originators, or creators, of the common phrases ‘Players’ or ‘Haters’ or combinations of them. They did not invent these common phrases nor are they the first to use them in a song,” the rep told Rolling Stone. “Their claim is not a crusade for all creatives, it is a crusade for Mr. Hall’s bank account.”