Taylor Swift Hit With Copyright Infringement Lawsuit
Nov. 9, 2015 (Mimesis Law) — Taylor Swift is famous for writing her own music, which is one thing that sets her apart from the majority of the other chart topping artists right now. Her personally-penned hits are distinguishable from the “pop factory”- produced “Call Me Maybe’s,” and other chart topping one hit wonders, whose formulaic lyrics and hooks leave listeners feeling that the songs are nothing more than showcases for a catchy chorus. Taylor, in contrast, has been hailed for writing her lyrics based on real life experiences, whether it be broken relationships, ex-boyfriend’s new girlfriends, feuds with ex-best-friends, or girl-power anthems to motivate and help her fans get through their daily struggles. That is why it came as a surprise to her (many) fans when she was sued for copyright infringement by musician Jessie Braham, claiming he owned the lyrics to Taylor’s hit, “Shake It Off.”
In his lawsuit, Braham alleges that Swift stole the lyrics from his 2013 song, “Haters Gonna Hate,” and used them in the chorus to her song, “Shake It Off.” From a legal perspective, plagiarism of music can occur in two ways: by either stealing the musical idea (the melody or motif), or sampling (taking a portion of a song and reusing it in a different song). This is not the first time that a chart topping artist has been sued by an unknown artist as an attempt to either gain their fifteen minutes of fame, or try to profit from the success of others. Sampling of music is popular, especially in hip-hop/rap or remixes that incorporate fragments of once popular songs into new works. But does this case even fall into one of the two categories of musical plagiarism? Can Braham prove that Swift copied his lyrics and owes him damages?
If Braham wants to succeed in establishing a violation of his right of reproduction (§106(1)), Braham must prove that Swift copied, and that there was improper appropriation of protectable elements. Braham can attempt to prove that Swift copied by either direct evidence, such as an admission or eyewitness testimony, which in this case will likely be hard to come by, or by indirect proof (circumstantial evidence). Braham can submit indirect proof that Swift had access to his song, and that there is probative similarity (some combination of access and similarity). The higher the proof of similarity, the less proof of access needs to be shown. Swift likely never heard Braham’s song prior to being sued, and even if Swift had heard Braham’s song, I highly doubt that it sparked the inspiration to her hit “Shake it Off”, since her songs are written as responses to her personal experiences. The only similarity between the two songs is the use of the phrase, “haters gonna hate, playas gonna play,” in the lyrics. The songs bear no musical similarities otherwise. Braham surely did not invent this phrase. In fact, a search of “haters gonna hate,” in other lyrics appears in the song “Playas Gon’ Play” by the artist 3LW, and it probably appeared in the vocabulary of teenagers across the country well before Swift added a catchy beat alongside that phrase.
In the highly unlikely event that Braham is successful in proving that Swift plagiarized, she can assert fair use as one defense, among the many available to her. The fair use doctrine permits limited use of a copyrighted work without requiring permission from the copyright holder. The four-factor balancing test used to evaluate fair use defenses considers: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the copying, and 4) the effect upon the work’s value. Swift’s use of “haters gonna hate,” and “players gonna play,” can be interpreted as transformative, and the fact that at worst Swift’s lyrics contain only 6 of the same/similar words copied from Braham’s song, strongly favors a fair use finding. Swift’s song is called “Shake it Off,” not “Hater’s Gonna Hate,” and does not have any imaginable negative effect on Braham’s work or the value he can derive from it. In fact, since filing the case Braham has benefited from the attention in a way that his song never would have done for him. In today’s YouTube age one share can cause a ripple effect and cause a video to go viral. Braham’s song has skyrocketed to 1.6 million views since he filed the case, before which the song had little to no airplay. Considering the weakness of his case, and the benefit to him from filing it, he should be thanking Taylor Swift, not continuing to sue her. Braham can continue to hate, hate, hate, but my suggestion is that he just shake it off before Swift files a counterclaim, and makes his fifteen minutes of fame a more expensive proposition than perhaps he bargained for.
None – Taylor is rich, but not yet publicly-traded.
Disclosures and Disclaimers:
Nothing in this material is intended to constitute legal or investment advice of any kind, nor is any of this material based on any non-public information of any kind. In addition to my work at Markman Advisors, I am also a name partner at a NYC-based intellectual property litigation boutique firm, Kroub Silbersher & Kolmykov PLLC (www.kskiplaw.com). Markman Advisors is affiliated with a Houston-based investment management firm, Perdix Capital Management, which may have existing or potential positions relating to situations discussed in this material. Markman Advisors also provides consulting services to buy-side investors, including hedge funds and family offices, that may also have or enter into positions relating to situations discussed in this material. Questions or comments can be directed to me at firstname.lastname@example.org. All suggestions are welcome.