7 Years On, a New 'Shake It Off' Headache for Swift

She filed a motion seeking to have the case dismissed
By Arden Dier,  Newser Staff
Posted Dec 10, 2021 10:40 AM CST
Updated Dec 29, 2021 3:02 PM CST
Taylor Swift Headed for Plagiarism Trial
Writer-director Taylor Swift attends a premiere for the short film "All Too Well" at AMC Lincoln Square 13 in New York on Nov. 12, 2021.   (Photo by Evan Agostini/Invision/AP)

Update: Taylor Swift wants a judge to take another look at his decision that a copyright infringement lawsuit against her can proceed. In a motion filed by Swift's side on Dec. 23, they say District Judge Michael W. Fitzgerald should have considered the "extrinsic test" in regards to similarities between "Shake It Off" and the 2001 single "Playas Gon' Play." Rolling Stone reports they're arguing that test, along with established Circuit law, requires the court to only consider "protectable elements" and not those in the public domain. "Both works use versions of two short public domain phrases—'players gonna play' and 'haters gonna hate'—that are free for everyone to use," the motion argues. It adds that while they similarly use repetitive phrases called tautologies, tautologies aren't protected either. A hearing is set for Feb. 7. Our original story from Dec. 10 follows:

Taylor Swift is headed to trial over claims that she stole the lyrics to the biggest single of her career. "Shake It Off," from Swift and co-producers Max Martin and Shellback, has successfully parried plagiarism allegations before. Indeed, District Judge Michael W. Fitzgerald in 2018 dismissed a case brought by songwriters Sean Hall and Nathan Butler, who said Swift stole from their song "Playas Gon' Play," a 2001 single released by girl group 3LW. While both songs include variations on the phrases "players gonna play" and "haters gonna hate," the judge then cited similar phrasing in other songs from various artists including Fleetwood Mac and the Notorious BIG.

A federal court reversal in October 2019 brought the case back to Fitzgerald, and on Thursday he refused Swift's request to immediately rule in her favor. That means the case will head to a jury trial, though a date has not been set, per Billboard. "Even though there are some noticeable differences between the works, there are also significant similarities in word usage and sequence/structure," Fitzgerald wrote, per the Guardian. He added "the court cannot presently determine that no reasonable juror could find substantial similarity of lyrical phrasing, word arrangement, or poetic structure between the two works." Still, he said Swift's lawyers would have "a strong closing argument" at trial.

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A lawyer for Hall and Butler said the opinion is a step closer to the justice her clients "so richly deserve," reinforcing "the idea that their creativity and unique expression cannot be misappropriated without any retribution." But a Swift rep countered that "these men are not the originators, or creators, of the common phrases 'players' or 'haters' or combinations of them … nor are they the first to use them in a song." The rep added the two are only after money, but the "true writers of 'Shake It Off' … will prevail again." (Swift previously emerged victor after R&B singer Jessie Braham claimed "Shake It Off" stole from his 2013 song "Haters Gone Hate.")

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