Tailor-made IP victory for Taylor Swift

singer-1501018Taylor Swift is very popular worldwide, winning accolades for her catchy songs. Over the past few years, in addition to her songs, she has also garnered attention for her tryst with IP, acquiring attention for her incessant trademark applications with respect to song lyrics, etc. However, this time, the tables are turned on her; Jessie Braham, the singer of a not so well known song “Haters Gone Hate” claimed that Taylor Swift has stolen lyrics from his song and used the same in her song “Shake It Off”, included in the album ‘1989’ which was released in the year of 2014. In a complaint filed by him, he sought $42 million in damages, along with the addition of his name and his publisher’s name to future copies.

In this complaint, Braham alleges that the Defendants have used a 22 word phrase from his song. Though Braham failed to identify the precise phrase, he states that 92% of the lyrics of the Defendants’ song came from his song. He further added that his song phrase string was used over 70 times. This complaint also included the request to pardon his court filing fees i.e. in forma pauperis (IFP). Braham goes so far as to claim that had he not written the song “Haters gone hate”, Taylor Swift would not have been able to create the song “Shake it off” ; a grand claim considering that his song was largely unheard of before the present controversy.

The court denied his IFP application as he failed to specify a claim of copyright infringement. Under Rule 8 of Federal Rules of Civil Procedure, the plaintiff is required to specify the constituent elements alleged to have been copied. Save for stating that a 22 word phrase was taken, he failed to pinpoint the subject matter that has been copied. In fact after going through the lyrics of both the songs, court failed to recognize the said phrase which apparently constituted 92% of the song. From the above it is easy to surmise that Braham failed to pinpoint the constituent elements that are alleged to have been copied by the Defendants.

The court held that alleging copying of a work is not enough. Braham needs to prove that his work is original and hence capable of being protected. It further held that it was not likely that Braham could fulfill the necessary requirements. It further held that if internet sources were to be taken into account, they would clearly show “Haters gone hate” and “Players gone play” are not original components with respect to Braham’s work.

Under Rule 8, Braham is required to state adequate facts so that a plausible case of copyright infringement case can be created. Braham’s pleadings, though vague, depend on the use of similar, short phrases which also appear in his song. However, that is where the similarity most probably ends. “One readily distinguishing feature in “Shake It Off” is the repetition of the last word of the phrases that Braham claims infringe. For example, “Haters gonna hate” is “Haters gonna hate, hate, hate, hate, hate” and “Players gonna play” is “Players gonna play, play, play, play, play.” That repetition is nowhere to be found in “Haters Gone Hate.” ”[i]

The court came to the conclusion that the discrepancies prevalent in the complaint stood in the way of the present lawsuit moving forward. The court held that if Braham decides to re-plead his case, he should provide adequate facts that may show objective similarity between the two works.[ii]

Regardless of the case being dismissed, the media attention gotten by him is not a bad trade off. In fact, since this controversy came to light, there has been a marked increase in the number of people ‘YouTubing’ his song, thereby increasing his song viewership.

 

[i] Jessie Braham vs. Sony/ATV Music Publishing et al., Case No. 2:15-cv-08422-MWF-GJS, Cal. C. Dis. U.S.,  Nov. 10, 2015

[ii] Ibid.

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