Loyola Law School Entertainment Law Review image of Taylor Swift

Will Taylor Swift Shake Off These Expert Witnesses?

Alyssa GarciaNews & Insights

By Alyssa R. Garcia

In her latest attempt to defeat a copyright infringement claim concerning her 2014 hit song “Shake It Off,” Taylor Swift filed a motion to exclude the plaintiffs’ expert witnesses.[1] The lawsuit against Swift, two of her songwriters, and her music label, publisher, and distributor, filed in 2017, centers on Swift’s use of the lyrics “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”[2] Plaintiffs Sean Hall and Nathan Butler, both songwriters, alleged that Swift’s lyrics illegally copied a six-word phrase and a four-part lyrical sequence from their 2001 song “Playas Gon’ Play” performed by R&B group 3LW.[3] The 3LW lyrics in question are, “Playas, they gonna play; And haters, they gonna hate.”[4]

The case was filed in the United States District Court for the Central District of California, where it was initially dismissed on the grounds that the allegedly infringed-upon portions of Hall and Butler’s song were “short phrases that lack the modicum of originality and creativity required for copyright protection.”[5] The District Court specified that, “for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issue here.”[6] The Ninth Circuit reversed the District Court’s decision, reasoning that it ran contrary to Justice Holmes’ warning that, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” [7] Justice Holmes intended for judges, who may not be trained in the arts, not to be the final arbiters of what kinds of works warrant copyright protection. Accordingly, the case was remanded to the District Court.

As the case heads to trial Swift has attempted to prohibit Hall and Butler’s witnesses from testifying.[8] Plaintiffs put forth one expert witness, Professor Loren Kajikawa, on the similarities between the 3LW song and Swift’s song.[9] They also put forth attorney Bob Kohn as their expert on damages.[10] Federal Rule of Evidence 702 states that qualified expert witnesses may testify if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Swift argues that Professor Kajikawa and Mr. Kohn are both unqualified under Rule 702.

Swift contends that Professor Kajikawa is not qualified due to his area of study being in musicology as opposed to comparative literary analysis, the latter of which is more relevant to an analysis comparing song lyrics.[11] Swift asserts that since Kajikawa does not have the requisite background required for expert witness testimony, he is unqualified because his opinions will not help the trier of fact resolve the contested issues.[12] Swift also argues that Kajikawa’s analyses rely on generalizations between the two songs, and the one specific claim he makes (that both songs use four tautological phrases) is incorrect because in Swift’s song the tautological phrases are broken up by other lyrics.[13]

Furthermore, for Hall and Butler to prove that “Shake It Off” infringed on the “Playas Gon’ Play” copyright, the lyrics must be proven substantially similar. Two tests must be satisfied to prove substantial similarity: the extrinsic test and intrinsic test. “The extrinsic test assesses the objective similarities of the two works, focusing only on the protectible elements of the plaintiff’s expression.”[14] The intrinsic test “requires a more holistic, subjective comparison” to determine similarities in the “total concept and feel” of the works.[15]Swift claims that Professor Kajikawa is not qualified to testify on the application of the extrinsic test to “Shake It Off” and “Playas Gon’ Play.” In particular, he opines as to general similarities between the songs, such as the theme of navigating relationships, rather than the specific similarities between protectable elements of the work as the test requires.[16]

Additionally, Plaintiffs retained expert Bob Kohn to testify as to what portion of the song’s profits are attributable to its alleged use of the “Playas Gon’ Play” lyrics. Swift contends that Mr. Kohn is similarly unqualified as an expert and that his testimony does not meet the Rule 702 factors and thus should be excluded. Swift argues that Mr. Kohn is unqualified because, although he is a lawyer in the music industry who focuses on licensing agreements, the opinions he offered were subjective and based on generalized experience listening to music and not a methodological analysis of a song’s monetary value.[17] Swift similarly argues that Mr. Kohn’s testimony about which lyrics “struck” his ear most is not an opinion based on facts or data such as Rule 702 requires, and that a lack of survey evidence makes his opinion speculative and unreliable.[18] Accordingly, Swift contends that Mr. Kohn’s opinions should be excluded.

Given that, in this case, the Ninth Circuit reiterated the need for experts to opine on whether a work is sufficiently original, a favorable expert opinion is critical for Hall and Butler’s case. Should the court grant Swift’s motion, Hall and Butler will face greater challenges establishing their claim of copyright infringement. The District Court will hear Defendants’ motion on December 19, 2022. Meanwhile, the trial date remains set for early 2023.[19]

[1] Jasmin Jackson, Taylor Swift Aims to Block ‘Shake It Off’ IP Witnesses, Law 360 (Sept. 6, 2022), https://www.law360.com/media/articles/1527720/taylor-swift-aims-to-block-shake-it-off-ip-witnesses-.

[2] Bill Donahue, Taylor Swift Must Face Trial in ‘Shake It Off’ Copyright Lawsuit, Billboard (Dec. 9, 2021), https://www.billboard.com/business/legal/taylor-swift-trial-shake-it-off-copyright-lawsuit-1235007922/.

[3] Hall v. Swift, 782 F. App’x 639, 640 (9th Cir. 2019).

[4] Ryan Smith, ‘Playas Gon’ Play’: How 3LW Song Compares to Taylor Swift’s ‘Shake It Off’, Newsweek (Aug. 12, 2022), https://www.newsweek.com/playas-gon-play-how-3lw-song-compares-taylor-swift-shake-it-off-1733249.

[5] Donahue, supra note 2.

[6] Hall v. Swift, No. 17-cv-06882-MWF(ASx), 2018 WL 2317548, at *8 (C.D. Cal. Feb. 13, 2018).

[7] Hall v. Swift, 782 F. App’x 639, 640 (9th Cir. 2019) (citing Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903)).

[8] Defendants’ Motion to Exclude Plaintiffs’ Expert Reports, Opinions, and Testimony, Hall v. Swift, No. 2:17-cv-06882-MWF-AS (C.D. Cal. Sept. 5, 2022), ECF No. 146-1.

[9] Jackson, supra note 1; see also Bill Donahue, Taylor Swift Blasts Expert Hired in ‘Shake It Off’ Case: ‘Making It Up As He Goes Along’, Billboard (Sept. 7, 2022), https://www.billboard.com/pro/taylor-swift-shake-it-off-trial-expert-witnesses/.

[10] Donahue, supra note 8.

[11] Motion, supra note 8, at 14-15.

[12] Motion, supra note 8, at 15.

[13] Motion, supra note 8, at 16-18.

[14] Rentmeester v. Nike, Inc., 883 F.3d 1111, 1118 (9th Cir. 2018) (internal citation omitted), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).

[15] Id.

[16] Motion, supra note 8, at 16-18.

[17] Motion, supra note 8, at 3-6.

[18] Motion, supra note 8, at 6-10.

[19] Justin Curto, Taylor Swift Can’t Shake Off Copyright Lawsuit, Must Go To Court, Vulture (Sept. 13, 2022), https://www.vulture.com/2022/09/taylor-swift-shake-it-off-lawsuit-trial-2023.html.