9th Circuit Revives Ridiculous 'Shake It Off' Copyright Lawsuit, Because The 9th Circuit Loves To Mess Up Copyright Law

Why is the 9th Circuit so horrendously bad at copyright law? This question comes up way too often. Last year we wrote about a very good and (and at the time, we thought) very easy and obvious district court dismissal of a lawsuit against Taylor Swift. The issue was Taylor Swift’s hit song “Shake It Off” which includes in the lyrics the lines “playas gonna play” and “haters gonna hate.” She was sued by Sean Hall who had a song call “Playas Gon’ Play” that has the lyrics “Playas, they gonna play / And haters, they gonna hate.” The district court not only dismissed the case as ridiculous, but the judge threatened Section 11 sanctions on Hall’s lawyers for bringing such a ridiculous case as it was beyond obvious that such short snippets (used slightly differently) weren’t nearly enough to get a copyright alone — and since that’s the only similarity, the case got tossed.

In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.

But, as first noted by the Hollywood Reporter, the 9th Circuit has revived the case and sent it back to the lower court. The incredibly short (and non-precedential) order just says that determining whether or not something is covered by copyright is a matter of fact, not law. This matters in a big way, procedurially, though I apologize for my very layman’s explanation of civil procedure. A motion to dismiss is generally the quickest and easiest way to get a case dismissed, though it’s limited in what it can be used for. A typical “12(b)6” motion to dismiss is used at the earliest part in a lawsuit, and basically says that “even if everything the plaintiff says is true, it doesn’t state a legitimate claim under the law” and thus should be dismissed. The judge is then supposed to assume that everything in the complaint is true (for this stage of things) and determine if there’s a valid claim (it’s much later in the procedure, if it gets that far, that defendants can start poking holes in the claims).

One of the rules used by judges is that they can only rule on matters of law, and whether or not there’s an actual claim is seen as a matter of law. Matters of fact, on the other hand, are seen as things that a jury should decide (much, much later in the process). Again, this is a very, very, very basic civil procedure lesson and there’s lots of nuance and conditions and real lawyers can feel free to complain about this description, but that’s the quick overview.

What’s bizarre about this 9th Circuit remand to the district court is that it suggests district court judges can never say “but that’s not even covered by copyright” at the motion to dismiss stage:

Originality, as we have long recognized, is normally a question of fact… . Indeed, as Justice Holmes long ago cautioned:

It 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. At the one extreme, some works of genius would be sure
to miss appreciation. Their very novelty would make them
repulsive until the public had learned the new language in which
their author spoke. . . . At the other end, copyright would be
denied to pictures which appealed to a public less educated than
the judge. . . . [A]nd the taste of any public is not to be treated
with contempt.

Justice Holmes’ century-old warning remains valid. By concluding that,
“for such short phrases to be protected under the Copyright Act, they must be more
creative than the lyrics at issues here,” the district court constituted itself as the
final judge of the worth of an expressive work. Because the absence of originality
is not established either on the face of the complaint or through the judicially
noticed matters, we reverse the district court’s dismissal under Rule 12(b)(6).1

But… that seems to totally misunderstand Justice Holmes’ point. Justice Holmes was saying that judges shouldn’t be in the business of judging the artistic merit of a work. But that’s a wholly different question from whether or not a work even qualifies for copyright in the first place. And it’s long established that short words or phrases are not covered by copyright. Indeed, the Copyright Office has made it clear for ages that you can’t copyright short phrases:

Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain
an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words

As such, it seems pretty freaking obvious that this is a question of law, not fact. “Is this copyrightable?” is right smack in the middle of a question of law. And yet, the 9th Circuit seems to think not — meaning that the 9th Circuit may face a bunch of really dumb copyright lawsuits on things clearly not covered by copyright, because the 9th Circuit seems to think even when there’s obviously no legitimate copyright, it has to go to a jury to decide that “fact.”

That seems really bad — and means that bogus copyright lawsuits cannot be (I’m so, so sorry) “shaken off” as easily as they should be.
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