In 2017, songwriters/producers/artists Sean Hall and Nathan Butler sued Taylor Swift and others for Swift’s song Shake it Off, alleging that it infringed the copyright in their creation Playas Gon’ Play, which was recorded by the girl group 3LW and released to the public in May 2001. The claim famously centered on a six-word phrase and a four-part lyrical sequence, now enshrined in the pop culture hall of fame. As the complaint alleged:

“Playas Gon’ Play” includes the lyrical phrase “Playas, they gonna play / And haters, they gonna hate.” The combination of playas/players playing along with hatas/haters hating may seem like common parlance today, however, in 2001 it was completely original and unique. Indeed, the combination had not been used in popular culture prior to Plaintiffs’ original use.

Through Plaintiffs’ own originality they created the original and unique lyrical phrase “Playas, they gonna play / And haters, they gonna hate” which is featured prominently in the chorus of Plaintiffs’ work. A version of this phrase “The playas gon’ play / Them haters gonna hate” appears in the introduction of the song. As created by Plaintiffs, the lyrical phrase describes two separate people – one playa who engages in playing and one hater who engages in hating.

As to Swift’s song, Plaintiffs continued:

“Shake it Off” copies and includes Plaintiffs’ lyrical phrase “Playas, they gonna play / And haters, they gonna hate” by featuring the lyrical phrase “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate” prominently throughout the chorus of “Shake it Off”. In all, the infringed copyrighted material accounts for roughly 20% of “Shake if Off”.

Well, at first the district court was not impressed. It dismissed the case, finding that the Plaintiffs’ handiwork was simply not original. Copyright protection subsists only in those elements of the work that are truly original to the author. Thus despite a claim of copyright, or even copyright registration in a work, an author normally has no monopoly on any elements in that work that she took from others. But The Ninth Circuit reversed, cautioning that judges should not undertake to be “final judges of the worth” of works of art, and that any determination of originality should normally be one for the jury.

Undeterred, the defendants later moved for summary judgment, arguing that no reasonable jury could find for the Plaintiffs. In support of their motion, defendants submitted a lengthy compendium purporting to show “the extensive use of player and hater phrases before plaintiffs’ Playas.” Highlights included:

  • The 1991 recording of Psycobetabuckdown by Cypress Hill includes in its lyrics the phrase “you’re a hater.”
  • The 1993 recording of Player’s Ball by Outkast includes in its lyrics the phrase “cause I’m a player, doing what the players do.”
  • The 1994 recording of Playa Playa by Big Mike includes in its lyrics the phrase “I’m just a playa, playa.”
  • The 1995 recording of Playa Hata by Luniz includes in its lyrics the phrases “playa hataz hate me” and “why you wanna playa hate on me?”
  • The 1996 recording of Fool Get a Clue by Digital Underground includes in its lyrics the phrase “players gonna play.”
  • The 2000 recording of Don’t Hate the Player by Too Short includes in its lyrics the phrases “don’t hate the player,” “if you never was a player, I can’t hate you,” “you never was a player, we can’t hate you,” “player hated,” and “player.”
  • The 2000 recording of Feelin’ on Yo Booty by R. Kelly includes in its lyrics the phrases “players wanna play,” “ballers wanna ball,” and “rollers wanna roll.”

Despite this excellent research, the district court denied the motion, characterizing the move as simply an attempt to re-litigate the Ninth Circuit’s controlling decision in the case. The court further concluded that while the defendants contend that the subject phrases are in the public domain, the Plaintiffs’ unique “structure and arrangement” of those phrases presented the modicum of originality required for copyright protection.

Trial in the case is set for late October.