Several media outlets report that Jesse Braham (real name Jesse Graham), an out of work and seemingly unknown musician, has filed a federal lawsuit Taylor Swift alleging that she stole the lyrics for her hit song “Shake It Off” from his song “Haters Gonna Hate.” In his complaint, Braham asserts “if Jessie Braham did not write the song ‘Haters Gone Hate,’ then Taylor Swift would not have written the song ‘Shake It Off.'”
Maybe it’s because I’m a huge Taylor Swift fan, but I believe that’s a very bold statement for Mr. Braham to make. Ms. Swift, while recycling heartbreak, her manic-pixie-dreamgirl persona, and those faces she makes whenever she wins an award, (you know it– the “I-can’t-believe-I-won-how-shocking!” look) probably didn’t need a huge deal of inspiration in rearranging five words to get her point across. Our job as attorneys, however, isn’t to chatter about the original songwriting prowess of our favorite blonde twenty-something, but to break down the legal argument behind the claim.
The lyrics at the root of the claim are as follows:
“‘Cause the haters gonna hate, hate, hate, hate, hate / and the players gonna play, play, play, play, play” followed by “Heartbreakers gonna break break break break break/ and the fakers gonna fake fake fake fake fake.”
“Haters gone hate, playas gone play / watch out for them fakers, they’ll fake you everyday”
Here’s a breakdown of why we won’t be seeing another Blurred Lines ruling out of this case.
The phrase “Hater gonna hate” traces its roots to 3LW’s song “Playa’s Gon’ Play” in 2000. Their lyrics, “the playas gon’ play / Them haters gonna hate / Them callers gonna call / Them ballers gonna ball” pull from some of the earliest references to “haters” found in Will Smith’s 1997 smash hit “Gettin Giggy wit It” and ICE T’s 1999 single, “Don’t Hate the Player.”
In late 2008, the phrase “haters gonna hate” took of in the world of internet memes when artist Omar Noory uploaded to his portfolio an image of a child confidently strutting forward with the thought bubble “Haters gonna hate.” In 2009, and 2010, the phrase became part of the viral meme community when animated photographs of proud-seeming people, animals, and other creatures boasted the mantra in various ways. By 2011, the phrase had spun into a play on words where users–like 3LW– interchanged various action words with the verbs: e.g. “workers gonna work, lawyers gonna lawyer, kittens gonna kitten.”
The phrase “Hater’s gonna hate,” along with other similar expressions, has been worked and re-worked time and time again. There is no originality to the lyrics claimed by Braham. Because he did not create an “original work of authorship” (17 U.S.C. 102) he can’t claim a copyright in the lyrics.
Under U.S. copyright law, the doctrine of scènes à faire provides that “when certain commonplace expressions are indispensable and naturally associated with the treatment of a given idea, those expressions are treated like ideas and therefore not protected by copyright.” In French, the saying scènes à faire roughly translates to “scene to be made” or “scene that must be done.” It’s often invoked in novels or movies to provide for the inherent commonalities of certain story lines or settings. For example: the “chosen one” plot line so common in movies nowadays always contains a storyline that unfolds, generally, with the “chosen hero” being informed that he or she is special, grappling with the decision whether to accept their destiny or not, and coming to embrace the idea that he or she is the one destined to save the human race. Certain similarities in “chosen one” stories will have to exist, as there are only a few options when expressing that common theme.
In the same way so many before her have used the phrase “haters gonna hate,” (see above) Swift is expressing an idea common to the music industry: that naysayers will always be bringing the successful down. Lyrically, the phrase “haters gonna hate” is much more attractive than the previous sentence, and has therefore become a commonplace way of expressing the idea. Examples are sprinkled about society in the form of other musics, designs, art, and other works. Because this phrase has become so naturally associated with the idea of successful musicians, Swift is likely able to invoke the affirmative defense of scènes à faire.
Unlike patent or trademark infringement, one of the requirements of a copyright infringement suit is actual copying of the protected work. While it is rare to find direct evidence of copying, a plaintiff can show access to the work coupled with “substantial similarity” to the original work. The Ninth Circuit, where this case was filed, uses an “inverse ratio” requiring that the more access the defendant had to the copyrighted work, the less similarity must be shown to prove copying has occurred. Substantial similarity is shown using several tests which rely on both expert and lay opinion.
When Taylor released “Shake It Off,” Braham’s Youtube rendition of the supposedly infringed song had only 76 views. While accessible to the public, it was buried in the depths of YouTube. Braham has no evidence indicating that Taylor Swift (or her writers) waded through millions of other videos to stumble upon his seldom-viewed piece, at which time they decided to misappropriate it for their own use. Therefore, access to the piece is very unlikely. Because there was little chance to access Braham’s work, a court would require a strong showing of substantial similarity to overcome the inverse ratio.
Sadly for Braham, the odds of a court finding enough substantial similarity to overcome the inverse ratio and sustain a finding of actual copying are slim. While my music theory skills may be fairly rusty, it’s easy to spot the differences in chord progression, melodic structure, and tempo in the works. While the songs do use some of the same language, the overall similarity of the work is unremarkable. If one listened to anything outside of the few lines containing the offending lyrics, there would be no connection between the songs. This lack of likeness between the works negates substantial similarity.
Because there is little evidence of access to Braham’s work, and a small degree of substantial similarity, it is unlikely that a court would overcome the inverse ratio and find evidence of actual copying. With no actual copying, there can be no successful copyright suit.
For these reasons, we aren’t worried for Taylor. While only time will tell how much exposure this suit will get, we think Taylor should just shake, shake, shake it off…. with the help of a seasoned attorney.
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