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Taylor Swift doesn't need to worry about this expensive 'Shake It Off' lawsuit

Taylor Swift doesn't need to worry about this expensive 'Shake It Off' lawsuit


She shook off a selfie request and ended up with a $42 million copyright infringement case

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Did Taylor Swift crib the concept of haters hating and players playing from a Los Angeles area non-denominational minister? That's what Jessie Braham is alleging in a lawsuit filed in federal court last week, one that's seeking $42 million in damages tied to Swift's supposed copyright infringement. Recording as Jesse Graham, Braham released a 2013 single called "Haters Gone Hate" that contains the choral phrase "Haters gone hate, playas gone play / watch out for them fakers, they'll fake you everyday."

Swift's 1989 hit was released the next year, and if you spent any time within earshot of a radio in 2014 you probably know the refrain: "'Cause the haters gonna hate, hate, hate, hate, hate / and the players gonna play, play, play, play, play." In his complaint, Braham contends that "if Jessie Braham did not write the song 'Haters Gone Hate,' then Taylor Swift would not have written the song 'Shake It Off.'"

Let's set aside the extremely unlikely prospect that Swift was inspired by Braham's song. (His video has almost 400,000 views, but his YouTube channel has 26 subscribers; I'm confident Taylor Swift isn't one of them.) Let's also ignore the fact that "haters gonna hate" and its various permutations have been in wide online use for at least a half-decade. Know Your Meme's primer on the phrase's meme-based proliferation is decent, and 3LW's "Playas Gon' Play" lumped players and haters together in close company almost a decade before that. (It's actually plausible that Swift is familiar with that song, especially compared to Braham's.) Does Braham's suit have any legal merit with respect to copyright infringement?

Even if Swift really did pull from Braham, she's likely protected by fair use precedent

Even if Swift really did pull from Braham's "Haters Gone Hate" in writing "Shake It Off," a court would have to decide the obvious fair use question, and that seems to tilt in Swift favor. It's the kind of case that'd find a precedent in Campbell v. Acuff-Rose Music, Inc., the landmark 1994 case that decreed 2 Live Crew's parodic usage of Roy Orbison's "Oh, Pretty Woman" was acceptable under copyright law. "Shake It Off" isn't parodying "Haters Gone Hate," but the two songs are completely different beyond their lyrical similarity: the former is bright, sharp pop music, and the latter sounds like cut-rate R. Kelly rendered using only MIDI instruments. Swift's song is transformative enough to overcome the words it happens to share with "Haters Gone Hate."

In a text message sent this afternoon, Braham chose not to comment on the suit, promising a "statement will be released tomorrow." Unless that statement contains some kind of unexpected, revelatory proof of Swift's plagiarism, Braham's suit will realize its destiny as a relatively successful publicity stunt. And if it's true that Braham only filed the suit in the wake of a denied request for a selfie, it's safe to conclude he's never going to get that picture with pop's reigning queen.