WEBVTT - Taylor Swift Can’t Shake Off Copyright Suit

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight an analysis into the most

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<v Speaker 1>and on Bloomberg dot com slash podcast. It's like break

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<v Speaker 1>and Say It's Gotta be all right The play play

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<v Speaker 1>d K Perry Kay, Hey dad Baby, I'm just say

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<v Speaker 1>Cherry ch cheer say s out. But Taylor Swift can

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<v Speaker 1>seem to shake off a lawsuit claiming she stole the

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<v Speaker 1>lyrics to her teen mega hit Songwriter Sean Hall and

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<v Speaker 1>Nathan Butler claim that Swift's shake it Off infringe on

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<v Speaker 1>the lyrics of their two thousand one song play is

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<v Speaker 1>Gonna Play Play Bloom and he didn't call the father.

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<v Speaker 1>A federal judge throughout the lawsuit last year, noting lyrics

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<v Speaker 1>from more than a dozen other song titles and band

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<v Speaker 1>names that referenced players, haters, or both, but the Ninth

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<v Speaker 1>Circuit Court of Appeals disagreed and reinstated the lawsuit, sending

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<v Speaker 1>it back to the judge. Joining me is intellectual property

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<v Speaker 1>litigator Terence Ross, a partner at Captain Nuten Rosenman. So Terry,

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<v Speaker 1>why did the Ninth Circuit reverse the lower courts decision?

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<v Speaker 1>The Ninth Circuit decided that the lower court judge had

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<v Speaker 1>decided at too soon a point in the case that

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<v Speaker 1>the allegedly copied work was lacking in originality. So this

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<v Speaker 1>was essentially a procedural ruling, sending the decision back to

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<v Speaker 1>the court and instructing the lower court to reconsider at

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<v Speaker 1>a later point in the case whether or not the

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<v Speaker 1>claimed copyright phrase had sufficient originality to all lawsuit. Terry

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<v Speaker 1>explain what the copyright claim is? Is it just over

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<v Speaker 1>these short phrases. There's actually two allegations. One is over

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<v Speaker 1>this word phrase. The plaintift song is called play is

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<v Speaker 1>going to play, and everyone knows around the world, probably

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<v Speaker 1>Taylor Swift's now famous song players going to Play, Play

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<v Speaker 1>Play Play. He He's going to hate hate, hate hate,

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<v Speaker 1>shake it off. And so that short phrase players going

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<v Speaker 1>to play is one aspect of the case. But the

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<v Speaker 1>other aspect is a four part lyrical sequence in the

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<v Speaker 1>song players Gonna Play, which was also found to be

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<v Speaker 1>lacking in sufficient originality to be copyrightable in the first place.

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<v Speaker 1>Courts routinely dismissed copyright infringement claims. Isn't this a threshold

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<v Speaker 1>question that the judge could answer they seemed to be

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<v Speaker 1>ordinary phrases in lyrics. I agree with that completely. Indeed,

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<v Speaker 1>the United States Copyright off has a regulation that says

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<v Speaker 1>it will not allow short phrases to be copyrighted, and

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<v Speaker 1>they don't take applications on short phrases and run them

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<v Speaker 1>by the general public to see if they have sufficient

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<v Speaker 1>degree of originality. So I think this decision in some

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<v Speaker 1>respects surprised many copyright practitioners. But again it's important to

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<v Speaker 1>stress that this is not in any way a decision

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<v Speaker 1>on the merits favoring either side of the dispute. This

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<v Speaker 1>is going to go back to the trial court and

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<v Speaker 1>the case will go on. All of the claims are

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<v Speaker 1>still existing, all of the burdens of proof that the

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<v Speaker 1>planet has still have to be met, All the defenses

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<v Speaker 1>that Taylor Swift has still exist and are still considered valid.

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<v Speaker 1>So it's simply postponing for another day the question of

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<v Speaker 1>whether or not these short phrases are a copyrightable in

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<v Speaker 1>the first place due to originality. Did the Ninth Circuit

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<v Speaker 1>give the lower court guidance on what to do next.

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<v Speaker 1>Not really. The Ninth Circuit's decision essentially tells the district

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<v Speaker 1>court judge that you, the district court judge, at the

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<v Speaker 1>very outset of the case, should not be making a

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<v Speaker 1>determination as to whether this short phrase had sufficient originality

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<v Speaker 1>to be copyrightable. Because remember, you don't get to copyright

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<v Speaker 1>just anything. There is at least a threshold requirement of

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<v Speaker 1>showing some minimal degree of originality in creativity to justify

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<v Speaker 1>a copyright. We don't allow a copyright in facts. We

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<v Speaker 1>don't allow copyrights and common sayings or expressions that people

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<v Speaker 1>use every day, because we don't want to create monopolies

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<v Speaker 1>and words or in short phrases. But all the Ninth

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<v Speaker 1>Circuit here said was we're not previewing how we would

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<v Speaker 1>come at We're is telling you, the trial judge, that

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<v Speaker 1>you did this too soon. You have to at least

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<v Speaker 1>wait till later point in the case to make this

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<v Speaker 1>decision on originality. What other information does the court need?

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<v Speaker 1>Does this actually have to go to a jury. It

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<v Speaker 1>might have to go to a jury, but there is

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<v Speaker 1>a way of shortcutting a jury trial that's referred to

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<v Speaker 1>as a summary judgment and here, Taylor Swift would potentially

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<v Speaker 1>bring a summary judgment motion saying that no reasonable jury

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<v Speaker 1>could ever find that this short phrase is sufficiently original

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<v Speaker 1>to be copyrightable. And in that case, a judge, if

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<v Speaker 1>he agrees that no reasonable jury could make such a finding,

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<v Speaker 1>could substitute his opinion for that of the jury, and

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<v Speaker 1>you would bypass a jury trial. Hence the phrase summary judgment.

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<v Speaker 1>I'm not saying that that's what's going to happen here.

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<v Speaker 1>I'm just saying that it is not necessarily the result

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<v Speaker 1>of this ring that there has to be a jury trial.

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<v Speaker 1>The judges on the Ninth Circuit panel reached back to

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<v Speaker 1>a nineteen o three decision from Supreme Court Justice Oliver

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<v Speaker 1>Wendell Holmes for a quote. Why do they reach back

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<v Speaker 1>so far? So this is sort of an inside baseball

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<v Speaker 1>issue here. I believe it's my opinion that the Ninth

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<v Speaker 1>Circuit judges were concerned about how this ruling would be

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<v Speaker 1>perceived by copyright practitioners in general, that most copyright practitioners

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<v Speaker 1>would have the same reaction June that you did, which is,

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<v Speaker 1>do you really have to have a jury trial on this?

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<v Speaker 1>And so they were looking for a form of cover here,

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<v Speaker 1>and they cite an iconic decision in the area of

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<v Speaker 1>copyright law called Blystein versus Donaldson Lithographing Company. It does

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<v Speaker 1>go back to three but it is by one of

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<v Speaker 1>the great jurists of all time, Oliver Wender Holmes, Jr.

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<v Speaker 1>And we he says, with respect to an illustration, that

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<v Speaker 1>the decision on whether it is sufficiently original should go

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<v Speaker 1>to a jury and not be made by judges. And

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<v Speaker 1>I think what they're saying there is, Hey, look, we're

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<v Speaker 1>not the first group of appellate judges to decide that

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<v Speaker 1>originality has to go to a jury or a fact

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<v Speaker 1>finder or some sort. The great Justice Holmes did this,

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<v Speaker 1>and this is a case that is taught to this

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<v Speaker 1>day in every single copyright treatise, and every single law

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<v Speaker 1>student who takes a copyright class will learn this case

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<v Speaker 1>and know this case. So it is instantly recognizable to

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<v Speaker 1>the fraternity of copyright lawyers and is a way of

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<v Speaker 1>really saying, hey, I don't think what we are doing

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<v Speaker 1>here in the Ninth Circus unusual. Justice Holmes did this,

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<v Speaker 1>remember b. Lifstein, But he is the Ninth Circuit, This

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<v Speaker 1>panel of the Ninth Circuit setting the bar lower and

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<v Speaker 1>lower in copyright cases and perhaps leading to a lot

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<v Speaker 1>more copyright cases June. I don't think the Ninth Circuit

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<v Speaker 1>was attempting with this case to purposefully lower the bar

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<v Speaker 1>for plaintiffs or to raise the bar for defendants in

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<v Speaker 1>copyright cases. I think the court was simply making a

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<v Speaker 1>decision with respect to allocating the final determination of originality

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<v Speaker 1>away from a district court judge to a jury or

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<v Speaker 1>other fact finder. The result of this decision is to

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<v Speaker 1>remove a quick, easy, inexpensive mechanism for performers and record

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<v Speaker 1>companies to get rid of lawsuits in the copyright area.

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<v Speaker 1>It does indeed raise the bar a little bit. I'm

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<v Speaker 1>not saying it raises the bar a lot, or even

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<v Speaker 1>in a way that can't they'll be hurdled by defendants.

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<v Speaker 1>But again, I don't think this Ninth Circuit panel was

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<v Speaker 1>thinking in these terms. What they were thinking about was,

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<v Speaker 1>are you the trial judge the right person to determine

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<v Speaker 1>what constitutes originality? Given the history we have in this

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<v Speaker 1>country with respect to allocating originality decisions to fact finders,

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<v Speaker 1>I eat juries. I think that's all they were doing.

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<v Speaker 1>I don't think they were purposely trying to make it

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<v Speaker 1>easier for copyright plannings are harder for copyright defendants in court.

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<v Speaker 1>Some people say this might stifle creativity. Do you agree

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<v Speaker 1>with that? I don't think that this decision itself will

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<v Speaker 1>stifle creativity. My experience with entertainers is that they're driven

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<v Speaker 1>to create and would arguably do so even without complete

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<v Speaker 1>copyright protections. That is not to say that they shouldn't

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<v Speaker 1>be worded for their creativity. They should, but I don't

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<v Speaker 1>think this decision in and of itself is going to

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<v Speaker 1>change that calculus one way or the other. Does this

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<v Speaker 1>have any implications for the Stairway to Heaven case? This

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<v Speaker 1>decision probably does not have an implication for the Stairway

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<v Speaker 1>to Heaven cases. In that case, the issues were more

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<v Speaker 1>with respect to infringement as opposed to hear where the

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<v Speaker 1>issue has to go to validity of the copyright in

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<v Speaker 1>the first place. An argument fundamentally here is don't even

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<v Speaker 1>consider whether there was copyright infringement, because you could only

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<v Speaker 1>have infringement when there is a copyrightable work, and that

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<v Speaker 1>the underlying work, the simple phrase player is going to

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<v Speaker 1>play it is simply not copyrightable. People say that all

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<v Speaker 1>the time, at least that's the argument, and I just

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<v Speaker 1>don't see that as impacting the Stairway to Heaving case.

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<v Speaker 1>It impacts a lot of other cases that might get

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<v Speaker 1>brought in the future though. Thanks for being on Bloomberg

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<v Speaker 1>Law Terry. That's Terence Ross of caton Uten and Rosenmant.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg