When reading legal cases, it is common to see references to the work of learned legal authorities. It is less common to see references to the work of Fleetwood Mac, Cypress Hill, Outkast and Sir Mix-A-Lot. However, in a recent US case alleging copyright infringement by singer Taylor Swift and her songwriting team, it was the judge’s references of the second kind, not the first, which determined the case.
In both the US and Australia, copyright protection is only available when a work (such as the lyrics of a song) has the necessary degree of originality. This raises the question (when only a short phrase from the lyrics of another song is copied) of whether that short phrase is too banal to be original. Given that many brands use slogans which are also short phrases, the need for originality also raises the question of how a brand can protect a short phrase (in the form of a slogan, rather than a song lyric) if copyright law won’t assist.
However, before we can strike up the brand, we need to strike up the band, so back to Taylor Swift. Copyright cases involving songs can be complex, because there are separate copyrights in relation to the lyrics (which are a “literary work”) and the music (which is a “musical work”). In the “Shake it off” case, the only complaint was about the lyrics. “Shake it off” is reportedly Taylor Swift’s most successful hit in the US, having stayed on the Billboard Hot 100 chart for 50 consecutive weeks throughout 2014 and 2015. The first part of the chorus goes something like this:
“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 / Shake it off / Shake it off”
The songwriters suing Ms Swift had written a song called “Playas Gon’ Play” in 2001. “Playas Gon’ Play” which, was performed by 3LW, also made an assault on the Billboard Hot 100 chart, reaching its zenith at number 81. The first half of the chorus of “Playas Gon’ Play” is exhibit #2:
“Playas, they gonna play
And haters, they gonna hate
Ballers, they gonna ball
Shot callers, they gonna call”.
So, did the Swiftian lyrics infringe the earlier work? The court held that they did not. Drawing on the work of the aforementioned musical artists (together with the work of Notorious B.I.G. and Ice-T) the court found that, “by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters” – so no originality there.
Further, said the court, “the concept of actors acting in accordance with their essential nature is not at all creative; it is banal”. (Drummers gonna drum, swimmers gonna swim, and judges gonna judge, after all). Finally, the Court rejected the argument that the “gonna” formulation could lend creative spark an otherwise unoriginal formula, and it should perhaps have been clear to the plaintiffs that they were never gonna get far with that.
If the case had been brought in Australia, it is likely that an Australian court would also have shaken off the plaintiffs’ claims against Ms Swift. In circumstances where taking one line from the chorus would not involve taking a “substantial part” of the original song, it would be necessary to show that the players/haters combination was itself a literary work for the songwriting plaintiffs to succeed in Australia,. Although Australian case law recognises that even a single “line of exquisite poetry” can be a literary work, more is involved than simply slapping some words together.
For example, Australian law has denied copyright protection to headlines on news stories, on the basis that they are not literary works, but in most cases simply a factual description of the article that follows. “While the use [in headlines] of devices such as puns and double entendres may be clever, evoke admiration and attract attention” said the Court in that case, “the addition of a pun does not, of itself, in the absence of evidence, convert such statements into literary works”. (The case did not discuss from whom evidence about the originality or creativity of puns should be provided – presumably, from a pundit).
Australian cases have refused copyright protection to “taglines” like “Change your life by changing someone else’s” and “Changing the world, one village at a time” because they are too insubstantial to be literary works. So, where does that leave the protection of slogans? Very simply, in a different branch of intellectual property law, namely trade mark law. Search the trade mark register and you will find such consumer staples as “You ought to be congratulated”, “Have a break”, and “a hard earned thirst”. You will also find “Taylor Swift” registered in a number of categories including footwear, non-medicated toiletries, and “providing information via a global communications network relating to music and musical entertainment”.
So, if unsuccessful copyright plaintiffs gonna be unsuccessful copyright plaintiffs, does that mean the trade mark field is open in Australia for a player who is prepared to play? It appears so – a trade mark application for “HATERS GON’ HATE!” was lodged in Australia in 2013, but the application never proceeded to registration. As against that, if you are trying to show your originality, picking up a trade mark discarded by someone else may not (to borrow from the title of Ms Swift’s latest album) be ideal for your brand “Reputation”.
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