Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight an analysis into the most
Speaker 1: important legal news of the day. You can find more
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Speaker 1: and Say It's Gotta be all right The play play
Speaker 1: d K Perry Kay, Hey dad Baby, I'm just say
Speaker 1: Cherry ch cheer say s out. But Taylor Swift can
Speaker 1: seem to shake off a lawsuit claiming she stole the
Speaker 1: lyrics to her teen mega hit Songwriter Sean Hall and
Speaker 1: Nathan Butler claim that Swift's shake it Off infringe on
Speaker 1: the lyrics of their two thousand one song play is
Speaker 1: Gonna Play Play Bloom and he didn't call the father.
Speaker 1: A federal judge throughout the lawsuit last year, noting lyrics
Speaker 1: from more than a dozen other song titles and band
Speaker 1: names that referenced players, haters, or both, but the Ninth
Speaker 1: Circuit Court of Appeals disagreed and reinstated the lawsuit, sending
Speaker 1: it back to the judge. Joining me is intellectual property
Speaker 1: litigator Terence Ross, a partner at Captain Nuten Rosenman. So Terry,
Speaker 1: why did the Ninth Circuit reverse the lower courts decision?
Speaker 1: The Ninth Circuit decided that the lower court judge had
Speaker 1: decided at too soon a point in the case that
Speaker 1: the allegedly copied work was lacking in originality. So this
Speaker 1: was essentially a procedural ruling, sending the decision back to
Speaker 1: the court and instructing the lower court to reconsider at
Speaker 1: a later point in the case whether or not the
Speaker 1: claimed copyright phrase had sufficient originality to all lawsuit. Terry
Speaker 1: explain what the copyright claim is? Is it just over
Speaker 1: these short phrases. There's actually two allegations. One is over
Speaker 1: this word phrase. The plaintift song is called play is
Speaker 1: going to play, and everyone knows around the world, probably
Speaker 1: Taylor Swift's now famous song players going to Play, Play
Speaker 1: Play Play. He He's going to hate hate, hate hate,
Speaker 1: shake it off. And so that short phrase players going
Speaker 1: to play is one aspect of the case. But the
Speaker 1: other aspect is a four part lyrical sequence in the
Speaker 1: song players Gonna Play, which was also found to be
Speaker 1: lacking in sufficient originality to be copyrightable in the first place.
Speaker 1: Courts routinely dismissed copyright infringement claims. Isn't this a threshold
Speaker 1: question that the judge could answer they seemed to be
Speaker 1: ordinary phrases in lyrics. I agree with that completely. Indeed,
Speaker 1: the United States Copyright off has a regulation that says
Speaker 1: it will not allow short phrases to be copyrighted, and
Speaker 1: they don't take applications on short phrases and run them
Speaker 1: by the general public to see if they have sufficient
Speaker 1: degree of originality. So I think this decision in some
Speaker 1: respects surprised many copyright practitioners. But again it's important to
Speaker 1: stress that this is not in any way a decision
Speaker 1: on the merits favoring either side of the dispute. This
Speaker 1: is going to go back to the trial court and
Speaker 1: the case will go on. All of the claims are
Speaker 1: still existing, all of the burdens of proof that the
Speaker 1: planet has still have to be met, All the defenses
Speaker 1: that Taylor Swift has still exist and are still considered valid.
Speaker 1: So it's simply postponing for another day the question of
Speaker 1: whether or not these short phrases are a copyrightable in
Speaker 1: the first place due to originality. Did the Ninth Circuit
Speaker 1: give the lower court guidance on what to do next.
Speaker 1: Not really. The Ninth Circuit's decision essentially tells the district
Speaker 1: court judge that you, the district court judge, at the
Speaker 1: very outset of the case, should not be making a
Speaker 1: determination as to whether this short phrase had sufficient originality
Speaker 1: to be copyrightable. Because remember, you don't get to copyright
Speaker 1: just anything. There is at least a threshold requirement of
Speaker 1: showing some minimal degree of originality in creativity to justify
Speaker 1: a copyright. We don't allow a copyright in facts. We
Speaker 1: don't allow copyrights and common sayings or expressions that people
Speaker 1: use every day, because we don't want to create monopolies
Speaker 1: and words or in short phrases. But all the Ninth
Speaker 1: Circuit here said was we're not previewing how we would
Speaker 1: come at We're is telling you, the trial judge, that
Speaker 1: you did this too soon. You have to at least
Speaker 1: wait till later point in the case to make this
Speaker 1: decision on originality. What other information does the court need?
Speaker 1: Does this actually have to go to a jury. It
Speaker 1: might have to go to a jury, but there is
Speaker 1: a way of shortcutting a jury trial that's referred to
Speaker 1: as a summary judgment and here, Taylor Swift would potentially
Speaker 1: bring a summary judgment motion saying that no reasonable jury
Speaker 1: could ever find that this short phrase is sufficiently original
Speaker 1: to be copyrightable. And in that case, a judge, if
Speaker 1: he agrees that no reasonable jury could make such a finding,
Speaker 1: could substitute his opinion for that of the jury, and
Speaker 1: you would bypass a jury trial. Hence the phrase summary judgment.
Speaker 1: I'm not saying that that's what's going to happen here.
Speaker 1: I'm just saying that it is not necessarily the result
Speaker 1: of this ring that there has to be a jury trial.
Speaker 1: The judges on the Ninth Circuit panel reached back to
Speaker 1: a nineteen o three decision from Supreme Court Justice Oliver
Speaker 1: Wendell Holmes for a quote. Why do they reach back
Speaker 1: so far? So this is sort of an inside baseball
Speaker 1: issue here. I believe it's my opinion that the Ninth
Speaker 1: Circuit judges were concerned about how this ruling would be
Speaker 1: perceived by copyright practitioners in general, that most copyright practitioners
Speaker 1: would have the same reaction June that you did, which is,
Speaker 1: do you really have to have a jury trial on this?
Speaker 1: And so they were looking for a form of cover here,
Speaker 1: and they cite an iconic decision in the area of
Speaker 1: copyright law called Blystein versus Donaldson Lithographing Company. It does
Speaker 1: go back to three but it is by one of
Speaker 1: the great jurists of all time, Oliver Wender Holmes, Jr.
Speaker 1: And we he says, with respect to an illustration, that
Speaker 1: the decision on whether it is sufficiently original should go
Speaker 1: to a jury and not be made by judges. And
Speaker 1: I think what they're saying there is, Hey, look, we're
Speaker 1: not the first group of appellate judges to decide that
Speaker 1: originality has to go to a jury or a fact
Speaker 1: finder or some sort. The great Justice Holmes did this,
Speaker 1: and this is a case that is taught to this
Speaker 1: day in every single copyright treatise, and every single law
Speaker 1: student who takes a copyright class will learn this case
Speaker 1: and know this case. So it is instantly recognizable to
Speaker 1: the fraternity of copyright lawyers and is a way of
Speaker 1: really saying, hey, I don't think what we are doing
Speaker 1: here in the Ninth Circus unusual. Justice Holmes did this,
Speaker 1: remember b. Lifstein, But he is the Ninth Circuit, This
Speaker 1: panel of the Ninth Circuit setting the bar lower and
Speaker 1: lower in copyright cases and perhaps leading to a lot
Speaker 1: more copyright cases June. I don't think the Ninth Circuit
Speaker 1: was attempting with this case to purposefully lower the bar
Speaker 1: for plaintiffs or to raise the bar for defendants in
Speaker 1: copyright cases. I think the court was simply making a
Speaker 1: decision with respect to allocating the final determination of originality
Speaker 1: away from a district court judge to a jury or
Speaker 1: other fact finder. The result of this decision is to
Speaker 1: remove a quick, easy, inexpensive mechanism for performers and record
Speaker 1: companies to get rid of lawsuits in the copyright area.
Speaker 1: It does indeed raise the bar a little bit. I'm
Speaker 1: not saying it raises the bar a lot, or even
Speaker 1: in a way that can't they'll be hurdled by defendants.
Speaker 1: But again, I don't think this Ninth Circuit panel was
Speaker 1: thinking in these terms. What they were thinking about was,
Speaker 1: are you the trial judge the right person to determine
Speaker 1: what constitutes originality? Given the history we have in this
Speaker 1: country with respect to allocating originality decisions to fact finders,
Speaker 1: I eat juries. I think that's all they were doing.
Speaker 1: I don't think they were purposely trying to make it
Speaker 1: easier for copyright plannings are harder for copyright defendants in court.
Speaker 1: Some people say this might stifle creativity. Do you agree
Speaker 1: with that? I don't think that this decision itself will
Speaker 1: stifle creativity. My experience with entertainers is that they're driven
Speaker 1: to create and would arguably do so even without complete
Speaker 1: copyright protections. That is not to say that they shouldn't
Speaker 1: be worded for their creativity. They should, but I don't
Speaker 1: think this decision in and of itself is going to
Speaker 1: change that calculus one way or the other. Does this
Speaker 1: have any implications for the Stairway to Heaven case? This
Speaker 1: decision probably does not have an implication for the Stairway
Speaker 1: to Heaven cases. In that case, the issues were more
Speaker 1: with respect to infringement as opposed to hear where the
Speaker 1: issue has to go to validity of the copyright in
Speaker 1: the first place. An argument fundamentally here is don't even
Speaker 1: consider whether there was copyright infringement, because you could only
Speaker 1: have infringement when there is a copyrightable work, and that
Speaker 1: the underlying work, the simple phrase player is going to
Speaker 1: play it is simply not copyrightable. People say that all
Speaker 1: the time, at least that's the argument, and I just
Speaker 1: don't see that as impacting the Stairway to Heaving case.
Speaker 1: It impacts a lot of other cases that might get
Speaker 1: brought in the future though. Thanks for being on Bloomberg
Speaker 1: Law Terry. That's Terence Ross of caton Uten and Rosenmant.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.
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