1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight an analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:22,040 Speaker 1: and on Bloomberg dot com slash podcast. It's like break 6 00:00:22,560 --> 00:00:28,000 Speaker 1: and Say It's Gotta be all right The play play 7 00:00:28,120 --> 00:00:33,960 Speaker 1: d K Perry Kay, Hey dad Baby, I'm just say 8 00:00:34,120 --> 00:00:39,959 Speaker 1: Cherry ch cheer say s out. But Taylor Swift can 9 00:00:40,040 --> 00:00:43,000 Speaker 1: seem to shake off a lawsuit claiming she stole the 10 00:00:43,120 --> 00:00:47,120 Speaker 1: lyrics to her teen mega hit Songwriter Sean Hall and 11 00:00:47,200 --> 00:00:51,040 Speaker 1: Nathan Butler claim that Swift's shake it Off infringe on 12 00:00:51,080 --> 00:00:54,000 Speaker 1: the lyrics of their two thousand one song play is 13 00:00:54,040 --> 00:01:00,320 Speaker 1: Gonna Play Play Bloom and he didn't call the father. 14 00:01:04,160 --> 00:01:07,920 Speaker 1: A federal judge throughout the lawsuit last year, noting lyrics 15 00:01:07,920 --> 00:01:10,479 Speaker 1: from more than a dozen other song titles and band 16 00:01:10,560 --> 00:01:14,320 Speaker 1: names that referenced players, haters, or both, but the Ninth 17 00:01:14,360 --> 00:01:18,479 Speaker 1: Circuit Court of Appeals disagreed and reinstated the lawsuit, sending 18 00:01:18,480 --> 00:01:21,560 Speaker 1: it back to the judge. Joining me is intellectual property 19 00:01:21,600 --> 00:01:25,959 Speaker 1: litigator Terence Ross, a partner at Captain Nuten Rosenman. So Terry, 20 00:01:26,000 --> 00:01:29,480 Speaker 1: why did the Ninth Circuit reverse the lower courts decision? 21 00:01:30,040 --> 00:01:34,520 Speaker 1: The Ninth Circuit decided that the lower court judge had 22 00:01:34,600 --> 00:01:39,000 Speaker 1: decided at too soon a point in the case that 23 00:01:39,280 --> 00:01:44,080 Speaker 1: the allegedly copied work was lacking in originality. So this 24 00:01:44,200 --> 00:01:48,840 Speaker 1: was essentially a procedural ruling, sending the decision back to 25 00:01:48,920 --> 00:01:53,600 Speaker 1: the court and instructing the lower court to reconsider at 26 00:01:53,640 --> 00:01:55,960 Speaker 1: a later point in the case whether or not the 27 00:01:56,280 --> 00:02:01,320 Speaker 1: claimed copyright phrase had sufficient originality to all lawsuit. Terry 28 00:02:01,560 --> 00:02:04,920 Speaker 1: explain what the copyright claim is? Is it just over 29 00:02:05,000 --> 00:02:10,040 Speaker 1: these short phrases. There's actually two allegations. One is over 30 00:02:10,360 --> 00:02:15,280 Speaker 1: this word phrase. The plaintift song is called play is 31 00:02:15,320 --> 00:02:19,240 Speaker 1: going to play, and everyone knows around the world, probably 32 00:02:19,720 --> 00:02:23,799 Speaker 1: Taylor Swift's now famous song players going to Play, Play 33 00:02:23,800 --> 00:02:26,200 Speaker 1: Play Play. He He's going to hate hate, hate hate, 34 00:02:26,200 --> 00:02:30,000 Speaker 1: shake it off. And so that short phrase players going 35 00:02:30,040 --> 00:02:32,160 Speaker 1: to play is one aspect of the case. But the 36 00:02:32,200 --> 00:02:36,360 Speaker 1: other aspect is a four part lyrical sequence in the 37 00:02:36,400 --> 00:02:40,360 Speaker 1: song players Gonna Play, which was also found to be 38 00:02:40,560 --> 00:02:44,440 Speaker 1: lacking in sufficient originality to be copyrightable in the first place. 39 00:02:44,600 --> 00:02:50,160 Speaker 1: Courts routinely dismissed copyright infringement claims. Isn't this a threshold 40 00:02:50,280 --> 00:02:53,400 Speaker 1: question that the judge could answer they seemed to be 41 00:02:53,520 --> 00:02:57,840 Speaker 1: ordinary phrases in lyrics. I agree with that completely. Indeed, 42 00:02:57,880 --> 00:03:02,800 Speaker 1: the United States Copyright off has a regulation that says 43 00:03:02,960 --> 00:03:08,360 Speaker 1: it will not allow short phrases to be copyrighted, and 44 00:03:08,840 --> 00:03:13,560 Speaker 1: they don't take applications on short phrases and run them 45 00:03:13,560 --> 00:03:18,080 Speaker 1: by the general public to see if they have sufficient 46 00:03:18,280 --> 00:03:21,600 Speaker 1: degree of originality. So I think this decision in some 47 00:03:21,840 --> 00:03:27,840 Speaker 1: respects surprised many copyright practitioners. But again it's important to 48 00:03:27,840 --> 00:03:30,520 Speaker 1: stress that this is not in any way a decision 49 00:03:30,680 --> 00:03:35,040 Speaker 1: on the merits favoring either side of the dispute. This 50 00:03:35,120 --> 00:03:37,880 Speaker 1: is going to go back to the trial court and 51 00:03:38,200 --> 00:03:40,760 Speaker 1: the case will go on. All of the claims are 52 00:03:40,840 --> 00:03:44,320 Speaker 1: still existing, all of the burdens of proof that the 53 00:03:44,320 --> 00:03:47,360 Speaker 1: planet has still have to be met, All the defenses 54 00:03:47,400 --> 00:03:52,360 Speaker 1: that Taylor Swift has still exist and are still considered valid. 55 00:03:52,920 --> 00:03:57,280 Speaker 1: So it's simply postponing for another day the question of 56 00:03:57,360 --> 00:04:00,960 Speaker 1: whether or not these short phrases are a copyrightable in 57 00:04:01,000 --> 00:04:05,240 Speaker 1: the first place due to originality. Did the Ninth Circuit 58 00:04:05,360 --> 00:04:09,160 Speaker 1: give the lower court guidance on what to do next. 59 00:04:10,000 --> 00:04:14,200 Speaker 1: Not really. The Ninth Circuit's decision essentially tells the district 60 00:04:14,200 --> 00:04:17,680 Speaker 1: court judge that you, the district court judge, at the 61 00:04:17,920 --> 00:04:21,240 Speaker 1: very outset of the case, should not be making a 62 00:04:21,279 --> 00:04:26,279 Speaker 1: determination as to whether this short phrase had sufficient originality 63 00:04:26,760 --> 00:04:30,839 Speaker 1: to be copyrightable. Because remember, you don't get to copyright 64 00:04:30,880 --> 00:04:34,960 Speaker 1: just anything. There is at least a threshold requirement of 65 00:04:35,000 --> 00:04:40,880 Speaker 1: showing some minimal degree of originality in creativity to justify 66 00:04:40,920 --> 00:04:44,839 Speaker 1: a copyright. We don't allow a copyright in facts. We 67 00:04:44,880 --> 00:04:49,360 Speaker 1: don't allow copyrights and common sayings or expressions that people 68 00:04:49,440 --> 00:04:51,760 Speaker 1: use every day, because we don't want to create monopolies 69 00:04:51,800 --> 00:04:55,120 Speaker 1: and words or in short phrases. But all the Ninth 70 00:04:55,120 --> 00:04:58,680 Speaker 1: Circuit here said was we're not previewing how we would 71 00:04:58,760 --> 00:05:01,560 Speaker 1: come at We're is telling you, the trial judge, that 72 00:05:02,000 --> 00:05:04,440 Speaker 1: you did this too soon. You have to at least 73 00:05:04,440 --> 00:05:06,880 Speaker 1: wait till later point in the case to make this 74 00:05:06,960 --> 00:05:11,680 Speaker 1: decision on originality. What other information does the court need? 75 00:05:11,760 --> 00:05:14,599 Speaker 1: Does this actually have to go to a jury. It 76 00:05:14,760 --> 00:05:16,839 Speaker 1: might have to go to a jury, but there is 77 00:05:16,880 --> 00:05:20,440 Speaker 1: a way of shortcutting a jury trial that's referred to 78 00:05:20,600 --> 00:05:25,360 Speaker 1: as a summary judgment and here, Taylor Swift would potentially 79 00:05:25,360 --> 00:05:30,040 Speaker 1: bring a summary judgment motion saying that no reasonable jury 80 00:05:30,200 --> 00:05:36,920 Speaker 1: could ever find that this short phrase is sufficiently original 81 00:05:37,480 --> 00:05:41,880 Speaker 1: to be copyrightable. And in that case, a judge, if 82 00:05:41,880 --> 00:05:44,880 Speaker 1: he agrees that no reasonable jury could make such a finding, 83 00:05:45,279 --> 00:05:48,039 Speaker 1: could substitute his opinion for that of the jury, and 84 00:05:48,120 --> 00:05:52,040 Speaker 1: you would bypass a jury trial. Hence the phrase summary judgment. 85 00:05:52,400 --> 00:05:54,880 Speaker 1: I'm not saying that that's what's going to happen here. 86 00:05:55,400 --> 00:05:59,360 Speaker 1: I'm just saying that it is not necessarily the result 87 00:05:59,440 --> 00:06:02,160 Speaker 1: of this ring that there has to be a jury trial. 88 00:06:02,720 --> 00:06:05,839 Speaker 1: The judges on the Ninth Circuit panel reached back to 89 00:06:06,000 --> 00:06:10,760 Speaker 1: a nineteen o three decision from Supreme Court Justice Oliver 90 00:06:10,839 --> 00:06:14,120 Speaker 1: Wendell Holmes for a quote. Why do they reach back 91 00:06:14,279 --> 00:06:19,279 Speaker 1: so far? So this is sort of an inside baseball 92 00:06:19,680 --> 00:06:24,120 Speaker 1: issue here. I believe it's my opinion that the Ninth 93 00:06:24,160 --> 00:06:28,800 Speaker 1: Circuit judges were concerned about how this ruling would be 94 00:06:28,839 --> 00:06:34,560 Speaker 1: perceived by copyright practitioners in general, that most copyright practitioners 95 00:06:34,560 --> 00:06:36,839 Speaker 1: would have the same reaction June that you did, which is, 96 00:06:36,960 --> 00:06:38,839 Speaker 1: do you really have to have a jury trial on this? 97 00:06:39,480 --> 00:06:43,120 Speaker 1: And so they were looking for a form of cover here, 98 00:06:43,440 --> 00:06:47,560 Speaker 1: and they cite an iconic decision in the area of 99 00:06:47,600 --> 00:06:52,800 Speaker 1: copyright law called Blystein versus Donaldson Lithographing Company. It does 100 00:06:52,839 --> 00:06:55,760 Speaker 1: go back to three but it is by one of 101 00:06:55,800 --> 00:06:59,000 Speaker 1: the great jurists of all time, Oliver Wender Holmes, Jr. 102 00:06:59,640 --> 00:07:03,880 Speaker 1: And we he says, with respect to an illustration, that 103 00:07:04,040 --> 00:07:07,520 Speaker 1: the decision on whether it is sufficiently original should go 104 00:07:07,760 --> 00:07:12,160 Speaker 1: to a jury and not be made by judges. And 105 00:07:12,240 --> 00:07:15,160 Speaker 1: I think what they're saying there is, Hey, look, we're 106 00:07:15,200 --> 00:07:18,960 Speaker 1: not the first group of appellate judges to decide that 107 00:07:19,040 --> 00:07:22,480 Speaker 1: originality has to go to a jury or a fact 108 00:07:22,480 --> 00:07:25,720 Speaker 1: finder or some sort. The great Justice Holmes did this, 109 00:07:26,160 --> 00:07:28,960 Speaker 1: and this is a case that is taught to this 110 00:07:29,080 --> 00:07:35,000 Speaker 1: day in every single copyright treatise, and every single law 111 00:07:35,080 --> 00:07:39,400 Speaker 1: student who takes a copyright class will learn this case 112 00:07:39,480 --> 00:07:43,080 Speaker 1: and know this case. So it is instantly recognizable to 113 00:07:43,200 --> 00:07:46,360 Speaker 1: the fraternity of copyright lawyers and is a way of 114 00:07:46,400 --> 00:07:49,000 Speaker 1: really saying, hey, I don't think what we are doing 115 00:07:49,040 --> 00:07:51,520 Speaker 1: here in the Ninth Circus unusual. Justice Holmes did this, 116 00:07:51,680 --> 00:07:56,320 Speaker 1: remember b. Lifstein, But he is the Ninth Circuit, This 117 00:07:56,440 --> 00:07:59,880 Speaker 1: panel of the Ninth Circuit setting the bar lower and 118 00:08:00,120 --> 00:08:04,880 Speaker 1: lower in copyright cases and perhaps leading to a lot 119 00:08:04,920 --> 00:08:08,840 Speaker 1: more copyright cases June. I don't think the Ninth Circuit 120 00:08:08,920 --> 00:08:12,920 Speaker 1: was attempting with this case to purposefully lower the bar 121 00:08:13,040 --> 00:08:17,720 Speaker 1: for plaintiffs or to raise the bar for defendants in 122 00:08:17,840 --> 00:08:22,600 Speaker 1: copyright cases. I think the court was simply making a 123 00:08:22,760 --> 00:08:30,120 Speaker 1: decision with respect to allocating the final determination of originality 124 00:08:30,160 --> 00:08:33,760 Speaker 1: away from a district court judge to a jury or 125 00:08:33,760 --> 00:08:39,360 Speaker 1: other fact finder. The result of this decision is to 126 00:08:39,400 --> 00:08:47,160 Speaker 1: remove a quick, easy, inexpensive mechanism for performers and record 127 00:08:47,200 --> 00:08:51,720 Speaker 1: companies to get rid of lawsuits in the copyright area. 128 00:08:52,160 --> 00:08:55,600 Speaker 1: It does indeed raise the bar a little bit. I'm 129 00:08:55,640 --> 00:08:58,559 Speaker 1: not saying it raises the bar a lot, or even 130 00:08:58,679 --> 00:09:02,360 Speaker 1: in a way that can't they'll be hurdled by defendants. 131 00:09:02,880 --> 00:09:05,560 Speaker 1: But again, I don't think this Ninth Circuit panel was 132 00:09:05,600 --> 00:09:08,880 Speaker 1: thinking in these terms. What they were thinking about was, 133 00:09:09,360 --> 00:09:14,679 Speaker 1: are you the trial judge the right person to determine 134 00:09:15,160 --> 00:09:20,040 Speaker 1: what constitutes originality? Given the history we have in this 135 00:09:20,240 --> 00:09:25,520 Speaker 1: country with respect to allocating originality decisions to fact finders, 136 00:09:25,679 --> 00:09:29,480 Speaker 1: I eat juries. I think that's all they were doing. 137 00:09:29,920 --> 00:09:32,240 Speaker 1: I don't think they were purposely trying to make it 138 00:09:32,320 --> 00:09:37,400 Speaker 1: easier for copyright plannings are harder for copyright defendants in court. 139 00:09:38,040 --> 00:09:41,840 Speaker 1: Some people say this might stifle creativity. Do you agree 140 00:09:41,840 --> 00:09:45,640 Speaker 1: with that? I don't think that this decision itself will 141 00:09:45,679 --> 00:09:51,400 Speaker 1: stifle creativity. My experience with entertainers is that they're driven 142 00:09:51,679 --> 00:09:56,200 Speaker 1: to create and would arguably do so even without complete 143 00:09:56,240 --> 00:09:59,480 Speaker 1: copyright protections. That is not to say that they shouldn't 144 00:09:59,480 --> 00:10:03,200 Speaker 1: be worded for their creativity. They should, but I don't 145 00:10:03,240 --> 00:10:06,480 Speaker 1: think this decision in and of itself is going to 146 00:10:06,559 --> 00:10:09,360 Speaker 1: change that calculus one way or the other. Does this 147 00:10:09,559 --> 00:10:13,280 Speaker 1: have any implications for the Stairway to Heaven case? This 148 00:10:13,320 --> 00:10:16,800 Speaker 1: decision probably does not have an implication for the Stairway 149 00:10:16,840 --> 00:10:22,240 Speaker 1: to Heaven cases. In that case, the issues were more 150 00:10:22,280 --> 00:10:27,720 Speaker 1: with respect to infringement as opposed to hear where the 151 00:10:27,840 --> 00:10:31,680 Speaker 1: issue has to go to validity of the copyright in 152 00:10:31,679 --> 00:10:35,280 Speaker 1: the first place. An argument fundamentally here is don't even 153 00:10:35,400 --> 00:10:38,360 Speaker 1: consider whether there was copyright infringement, because you could only 154 00:10:38,400 --> 00:10:41,720 Speaker 1: have infringement when there is a copyrightable work, and that 155 00:10:42,000 --> 00:10:44,559 Speaker 1: the underlying work, the simple phrase player is going to 156 00:10:44,679 --> 00:10:47,240 Speaker 1: play it is simply not copyrightable. People say that all 157 00:10:47,280 --> 00:10:49,160 Speaker 1: the time, at least that's the argument, and I just 158 00:10:49,200 --> 00:10:52,199 Speaker 1: don't see that as impacting the Stairway to Heaving case. 159 00:10:52,240 --> 00:10:54,560 Speaker 1: It impacts a lot of other cases that might get 160 00:10:54,600 --> 00:10:56,960 Speaker 1: brought in the future though. Thanks for being on Bloomberg 161 00:10:57,000 --> 00:11:00,679 Speaker 1: Law Terry. That's Terence Ross of caton Uten and Rosenmant. 162 00:11:02,760 --> 00:11:05,719 Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can 163 00:11:05,760 --> 00:11:09,480 Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud, 164 00:11:09,559 --> 00:11:13,480 Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso. 165 00:11:13,920 --> 00:11:15,240 Speaker 1: This is Bloomberg