28/02/2018
A Californian Federal Judge has dismissed a copyright infringement lawsuit against Taylor Swift. Apparently the phrase ‘playas, they gonna play, and haters, they gonna hate’ is “too brief, unoriginal and uncreative” to warrant protection under the US Copyright Act.
The lyric features in ‘Playas Gon’ Play’, written in 2001 by Sean Hall and Nathan Butler, who claim that Taylor Swift stole from this composition for her single ‘Shake It Off’. Swift’s hit song, which has been viewed 2.5 Billion times on YouTube, includes the line: “Players gonna play, play, play, play, play, and haters gonna hate, hate, hate, hate, hate”.
Short phrases such as this, perhaps because they are so easily separated from the larger works, are often lifted and used in other literary or musical compositions, or on merchandise. Unfortunately for Hall and Butler, once separated from the larger work these short phrases tend to become unprotectable. Particularly if a short phrase is deemed to be a common idiom, in which case a monopoly cannot be granted under copyright for its use.
The length of the phrase that is lifted is not the test for whether copyright infringement has occurred. The test is whether the original is a copyrightable work in the first place, and proving that a short phrase is worthy of copyright protection is a tough one to pull off. A claimant in this type of case would need to show that the phrase they authored exhibits an adequate amount of creativity, that it is a uniquely suggestive phrase and not merely a trivial variation on that which already belongs to the public.
The song-writing duo claimed that their combination of two distinct thoughts grants their phrase an originality deserving of copyright protection. Judge Michael W. Fitzgerald disagreed: “By 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters … The concept of actors acting in accordance with their essential nature is not at all creative; it is banal”.
This is not the first time Swift has faced allegations of copyright infringement over these lyrics. In 2014, R&B singer Jesse Graham filed a $42 million suit against Swift for infringing his 2013 track ‘Haters Gone Hate’. This claim was also rejected.
Perhaps as a result of her success in shaking off these copyright lawsuits, Taylor Swift has opted for stronger IP protection for her own lyrics. Ahead of her November album Reputation, applications have been filed in the US to register as a trade mark the phrases “Look What You Made Me Do” and “The old Taylor can’t come to the phone right now”.
Unlike copyright, a trade mark has to cover a range of goods or services in relation to which the applicant for registration uses, or intends to use, the sign. According to the US Trade Marks Register, Swift intends to use these marks for her core services, musical recordings and live performances, in addition to an array of merchandise, which ranges from note books and guitar picks to novelty sunglasses.
Swift has had some success in previous attempts to register short phrases from her album 1989 as trade marks, including “This Sick Beat” and “Nice to Meet You, Where You Been?”, and even the name of the album itself. This approach gives her a much stronger legal defence against those who would use the registered signs without permission on the goods and services that her registrations cover; high-street fashion designers, for instance, who often use lyrics and song titles as slogans on clothing.
In the USA, an applicant to register a trade mark must prove that they are actively using that mark in relation to the goods or services covered by their application. Taylor Swift has had several of her trade mark applications granted, but a few others have failed on the grounds that adequate use had not been proven. In other territories, such as the UK and EU, proof of use is not a requirement for registration.
In the UK and EU, it tends to be more difficult to register a short phrase if it is deemed to be a ‘slogan’. The concern is that a slogan will be perceived by the public as only an advertising strapline, that it will not have the distinctive character necessary to function as a trade mark. In principle, a mark can be perceived simultaneously as a promotional formula and an indication of origin and this duality should have no bearing on its distinctive character; however, what we see in practice is that there is a higher hurdle when attempting to register a phrase that is long enough to be deemed an advertising strapline. To jump this hurdle the marks needs to contain some quirkiness, a conceptual tension or double meaning that triggers a thought process or demands a degree of intellectual effort, all with the effect of making the mark more distinctive and more easily remembered. In the USA, by comparison, it tends to be easier to register phrases that are the length of some of Taylor Swift’s trade marks.
Registering her lyrics as trade marks will not necessarily afford Swift protection against others using them in their song lyrics. Trade marks designate the origin of goods and referring to them in a creative work does not automatically impair this function. However, the courts are willing to look at other ‘essential functions’ of a trade mark, aside from the indication of origin, such as the ability to advertise the brand, or the maintenance of a reputation amongst consumers.
The lyrics of Taylor Swift’s songs, taken as a whole, are protected under copyright. As for short phrases lifted from them, much stronger protection is granted for their use on specific goods and services if registered as a trade mark.
Taylor Swift has a huge and adoring fan-base and there is a clear desire in the market for goods adorned with her lyrics. In this regard, her lyrics can be used to good effect as trade marks.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
