The Ninth Circuit recently reversed the dismissal of copyright infringement claims in Hall v. Taylor Swift finding a lack of sufficient facts or evidence of record to justify a summary conclusion of lack of originality for copyright protection.
On October 28, 2019, the Ninth Circuit Court of Appeals revived the copyright infringement case against Taylor Swift in Hall v. Swift (available here) emphasizing that the question of what qualifies as sufficient originality to qualify for copyright protection is a highly fact-specific inquiry not suited for disposition on a motion to dismiss.
In 2017, plaintiffs Sean Hall and Nathan Butler, both songwriters, filed suit against Swift alleging that a portion of the lyrics to Swift's popular song Shake it Off copied lyrical phrases from their 2001 song entitled Playas Gon' Play. Plaintiffs subsequently appealed the Central District of California's grant of a motion to dismiss in favor of Swift in February, 2018 (available here) to the Ninth Circuit.
Copyright originality and the district court's decision
To qualify for copyright protection in the U.S., a plaintiff is required to demonstrate both independent creation and some "minimal degree of creativity." An originality analysis is an unavoidably fact-intensive analysis, turning on the particular facts of the case and evidence presented by the parties.
In its grant of Swift's motion to dismiss, the court held that plaintiff's copyrighted lyrics "Playas, they gonna play/And haters, they gonna hate" were not sufficiently creative because, by 2001, American popular culture was "heavily steeped in the concepts of players, haters, and player haters" and that "combining two truisms about playas and haters, both well-worn notions as of 2001, [was] simply not enough" creativity to meet the originality requirement. The court explained that the concept conveyed by the lyrics – "actors acting in accordance with their essential nature" – was "not at all creative," but "banal."
The Ninth Circuit's reversal
On appeal, the Ninth Circuit rejected the district court's finding stating that regardless of the judicially noticed facts, plaintiff's complaint still "plausibly alleged originality." In arriving at the conclusion that plaintiff's work did not meet originality requirements, the district court failed to establish any facts or evidence as "the absence of originality [was] not established either on the face of the complaint or through the judicially noticed matters." Due to the complete lack of evidence, the district court had "constituted itself as the final judge of the worth or an expressive work," justifying its reversal.
Key takeaway from this decision
The decision of the Ninth Circuit is a strong reminder that the originality of a copyrighted work is a highly factually-intensive analysis, ill-suited for disposition in a motion to dismiss. Evaluations of the originality of copyrighted works are better reserved for when the record has been more fully developed and more facts and evidence have been presented to the factfinder.
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