If you had ears in mid-2014, you’ve heard pop-star Taylor Swift’s Billboard Hot 100 song, “Shake it Off.” The lyrics feature a catchy phrase (apologies in advance for getting it stuck in your head):

‘Cause the players gonna play, play, play, play, play

And the haters gonna hate, hate, hate, hate, hate

Baby, I’m just gonna shake, shake, shake, shake, shake

I shake it off, I shake it off’

Based on these lyrics, two song writers from 3LW, an all-girl group that gained popularity in the early 2000s, sued Taylor Swift for alleged copyright infringement of their song Playas Gon’ Play. The suit was filed back in 2017 in the U.S. District Court for Central California.

In this latest development, Swift filed a motion to dismiss with the district court on the ground that the disputed lyrics lacked sufficient originality to enjoy copyright protection, for various reasons. The district court agreed with Swift, and the plaintiffs appealed to the Ninth Circuit. The Ninth Circuit reversed the dismissal on the ground that the originality of the lyrics could not be determined as a matter of law and remanded the case back to the district court with the directive to consider Swift’s alternative arguments in support of the motion to dismiss.

Both sides filed supplemental briefs, with Swift arguing that Plaintiffs’ claim is precluded because the unprotected ideas underlying the alleged copied words merged with those words, rendering them unprotectable too. That is, Swift alleged that the “merger doctrine” precluded copyright protection because there is practically only one way to express the idea of “people will do what they will do”.[1]

Copyright protection does not extend to ideas, only to expression. And the merger doctrine recognizes that “some ideas can only be expressed in a limited number of ways. . . . When expression is so limited, idea and expression merge.”[2]  In that situation, because the would-be copyright owner cannot own the idea itself, courts cannot protect the expression.

Citing the merger doctrine, Swift argued that the expressions players gonna play and haters gonna hate were merged with the underlying idea that “people will do what they will do.” The district court disagreed that such a finding was appropriate at this stage in the litigation, holding that:

But, as Plaintiffs note, their lyrics, as alleged, are more complex than people will do what they will do, and it is not abundantly clear from the Complaint that there are sufficiently few means of expressing this idea.

Accordingly, the district court denied Swift’s motion. So, for now, Plaintiffs’ case will “keep cruising, can’t stop, won’t stop moving.”[3]

The case is: Sean Hall et al. v. Taylor Swift et al., Case No. CV 17-6882-MWF.


[1] Courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. See EtsHokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir. 2000)).

[2] See e.g., Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 102 (2d Cir. 2014) (internal cites omitted).

[3] Lyrics to “Shake it Off” by Taylor Swift, with Max Martin, Shellback.