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A swift law suit

Taylor Swift, one of the most well-known pop artists in the world, has recently been the Defendant to a $42m (£27m) US law suit for copyright infringement.Swift released the song "Shake It Off" in Taylor Swift, one of the most well-known pop artists in the world, has recently been the Defendant to a $42m (£27m) US law suit for copyright infringement.

Swift released the song "Shake It Off" in 2014 which includes the following lyrics in the chorus "Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate", a variation of the chorus including the lyrics "and the fakers gonna fake, fake, fake, fake, fake". The song reached number 2 in the UK and is one of Swift's best known singles, having been watched 1.1 billion times on Youtube.

The Claimant in the action, an unknown R&B artist named Jesse Braham, claims the song, and in particular, the above specified lyrics, infringe the copyright in his earlier song "Haters Gone Hate". The chorus of Mr Braham's song includes the lyrics "Haters gone hater, plays gone play. Watch out for them fakers, they'll fake you everyday". The song was released in 2013, a year prior to Swift's.

In early November, a Californian judge dismissed the Claim on the basis that, firstly, the phrases "haters gonna hate" and "players gonna play" were popular Google search terms prior to Mr Braham's having written the song lyrics. Secondly, the phrases also feature in earlier songs by other R&B artists. There were also problems with his pleaded case. In terms of the validity of Mr Braham's claims, it was pleaded that Swift made use of a 22 word phrase, without any document defining the precise words of such a phrase, and that 92% of Swift's lyrics were appropriated from his song despite the two songs being significantly different.

From a UK legal perspective,  it was previously the view that titles, slogans and excerpts were not protected by copyright either because they were not "literary works" in the first place, or because they were not the product of sufficient skill and labour to be original (the test under UK law). However, in the Meltwater case, it was held that newspaper headlines are capable of being original literary works, so by analogy, that might also be the case for extracts from song lyrics. Apart from the fact that phrases such as "haters gonna hate" and "players gonna play" were in the public domain prior to the use by Mr Braham, it is debateable to what extent the song lyrics here would satisfy the test of originality for literary copyright laid down under UK law (the author must have created the work through his own skill, judgment and individual effort and not copied it) or as set out in the CJEU's decision in Infopaq (the works must be the author's own intellectual creation).

It can only be presumed that the claim was known to be hopeless, but the publicity the law suit sparked was sufficient to trigger more YouTube views and iTunes downloads than Mr Braham's song would otherwise have received.

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