By Firm News Firm News October 22, 2019
Continuing with GFL’s fight for the songwriters everywhere, last week the Ninth Circuit heard oral arguments in the “Shake It Off” case filed by the Firm’s songwriting clients against Taylor Swift and Co., as publicized earlier.
Prior to the argument, there was considerable news coverage concerning the letter exchange between the parties, started with Taylor Swift’s submission arguing that the case at bar is “related” to the “Stairway to Heaven” case, which we covered here (the Ninth Circuit has granted en banc rehearing in that case, and it is currently stands fully submitted). The parties’ letter exchange drew close scrutiny, as is reflected in the news coverage here and here.
The eagerly anticipated oral argument, accompanied by news coverage here, was held on October 15, 2019 in San Diego before Justices Hurwitz, Owens and Lee. As reported by Law360.com, Marina V. Bogorad of Gerard Fox Law PC argued that U.S. District Judge Michael W. Fitzgerald erred by tossing a lawsuit against the pop star filed by her clients, Sean Hall and Nathan Butler, without allowing for discovery or expert testimony, even though their claims are plausible.
“This is a factual matter that is screaming for discovery,” she said.
Bogorad argued that determining lyrical compositions at the pleading stage is “pretty much impossible,” because the court can’t make an objective assessment of the lyrical composition's originality. She also argued that Judge Fitzgerald has no training in hip-hop culture and history, or lyrical sequencing.
“Judges should not substitute their aesthetics for the jury … you have to let it go to a fact finder,” she said.
When questioning Taylor Swift’s attorney, Judge Hurwitz asked if counsel thought that Swift’s “Shake it Off” song lyrics were copyrightable.
Swift’s attorney replied that he thinks they are, primarily because of the repetition of the words. The judge then pushed counsel on the point, asking how many words need to be repeated for a lyrical phrase to be copyrightable. Counsel said he “can’t draw a clear line,” but at some point it “flips.”
For his part, Judge Hurwitz said he doesn’t think anyone would argue that the phrases in the two songs are similar, but the district judge’s order “seems to be limited to whether or not these phrases are original.” He added that it does seem like Judge Fitzgerald still has to do some analysis of the sequence of the phrases.
On rebuttal, Judge Lee pointed out phrases in an R. Kelly song that are seemingly similar to the phrases at issue, but the songwriters’ attorney noted that R. Kelly’s song was released after her clients created their song, so if anything, her clients might have a case against R. Kelly.
The panel took the arguments under submission.