Are the haters just hating or should artists’ works be protected by copyright?

14 Feb 2018

The copyright infringement claim against Taylor Swift, which was, on Tuesday, dismissed by Californian Judge Michael W Fitzgerald, poses the poignant question of to what extent lyricists should be able to claim copyright over their work, or whether it is just the nature of the game that pop culture by definition will see repetition.

Songwriters Sean Hall and Nathan Butler purported that Swift used lyrics from their song released by 3LW in 2000, titled ‘Playas Gon’ Play’ in her 2014 hit ‘Shake it Off’.

This decision was reached in the US, however, the UK has not been without its share of songwriters claiming that successful songs used lyrics they had created.

In 2000, Robbie Williams was found to have infringed the copyright in a song titled ‘I am the Way (New York Town)’ written by Wood Guthrie, in his song ‘Jesus in A Camper Van’. It was concluded that Williams copied a ‘substantial’ part of the original work, following existing case law on the meaning of ‘substantial’ as both qualitative as well as quantitative. The original song included the line "Every Son of God gets a little hard luck sometimes, especially when he goes round saying he is the way" which is noticeably similar to the Williams line "I suppose even the Son of God gets it hard sometimes, especially when he goes round saying I am the way".

In contrast, Swift’s phrase “‘Cause the players gonna play, play, play / And the haters gonna hate, hate, hate, hate, hate”, although similar to the 3LW line “Playas, they gonna play / And haters, they gonna hate” and a substantial part of the song, was considered ‘banal’.

It shows the balance to be struck between protecting artistic work and accepting popular culture, which sees words and phrases copied and spread across social media and the internet.

In the UK, the courts emphasise the need for originality in protected works. It is therefore probable that they would agree with Fitzgerald’s comment that players playing and haters hating and "the concept of actors acting in accordance with their essential nature is not at all creative; it is banal" and that the phrases “lack the modicum of originality and creativity required for copyright protection".

It is likely that the US Judge wanted to avoid floodgate claims of individuals who believe they started ‘trend phrases’ and stifling a media which thrives on copying current trends. Will the creator of ‘squad goals’ or ‘bae’ be the next to stake their claim? 

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