Taylor Swift asks for rehearing of ‘Shake it Off’ copyright summary judgment

Attorneys for Taylor Swift, her record label and music publishers have asked U.S. District Judge Michael W. Fitzgerald to amend or reconsider his denial of summary judgment in a copyright infringement lawsuit over the pop song, "Shake It Off."

Peter Anderson of Davis Wright Tremaine LLP filed the motion on Dec. 23 seeking a hearing on Feb. 7 on the grounds that Fitzgerald did not rule on whether the plaintiffs' claimed similarity in lyrics survives the 9th U.S. Circuit Court of Appeals' necessary extrinsic test. Sean Hall et al. v. Taylor Swift et al., 2:17−cv−06882 MWF (C.D. Cal. 2017).

The 2014 song, Swift's longest-charting single, contains the lyrics: "'Cause the players gonna play, play, play, play, play, and the haters gonna hate, hate, hate, hate, hate."

The plaintiffs, songwriters Sean Hall and Nathan Butler, alleged that this infringes their 2000 hit "Playas "Playas Gon' Play" performed by 3LW. Their lyrics included: "Playas, they gon' play, and haters, they gonna hate."

In a memorandum of points, the defendants argued that the phrase "Xers gonna X" was already part of the urban vocabulary, and that the plaintiffs admitted as much.

Swift's lawyers argued that Fitzgerald's order did not apply the necessary extrinsic test which states, "It is essential to distinguish between the protected and unprotected material in a plaintiff's work," citing Skidmore v. Led Zeppelin, 14-3089 (E.D. Penn. May 6, 2015).

"Plaintiffs could sue everyone who writes, sings, or publicly says, 'Players gonna play' and 'haters gonna hate,'" Anderson wrote in the motion. "To permit that is unprecedented and cheats the public domain."

Marina V. Bogorad of Gerard Fox Law, the plaintiffs' counsel, stated in an interview that "the motion is groundless" as "it asks the court to rewrite itself." She said, "These arguments were raised before and they are being raised again just because Ms. Swift is not happy with the ruling. We think this motion is useless, for it is uncommon and it needs more than just disagreement. It needs an extraordinary amount of error from the court, so it will be denied."