Taylor Swift can’t shake off infringement lawsuit over song

Taylor Swift can't shake off an infringement lawsuit over her song "Shake It Off," a 9th U.S. Circuit Court of Appeals panel ruled Monday.

A federal judge previously dismissed the lawsuit filed in 2017 by plaintiffs Sean Hall and Nathan Butler, who say Swift lifted the lyrics for "Shake It Off" from a song they'd written in 2000 for the band 3Lw called "Playas Gon' Play."

U.S. District Judge Michael Fitzgerald wrote the disputed lyrics lacked "the modicum of originality and creativity" needed for copyright protection. Hall et al v. Swift et al., 17-cv-06882(C.D. Cal., filed Sept. 18, 2017).

But the complaint still plausibly alleged originality, a 9th Circuit panel wrote in its unpublished opinion Monday. The panel judges quoted a 1903 opinion in Bleistein v. Donaldson Lithography Co., written by Oliver Wendell Holmes Jr., to support their belief the lower court had acted prematurely. Bleistein v. Donaldson Lithography Co., 188 U.S. 239, 251-52 (1903).

"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits," Holmes wrote.

Holmes' "warning remains valid," the panel wrote Monday.

"By concluding that, 'for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here,' the district court constituted itself as the final judge of the worth of an expressive work," the panel said. Because the absence of originality hasn't been established by the complaint or the court, the panel reasoned the case should be reversed and remanded.