Taylor Swift’s copyright battle: Inspiration or infringement?
Popular music has many common themes, both lyrically and musically. Most songs featured in the Top 40 music charts are about love or partying and have similar chord progressions and musical motifs.
Singers or musical groups may share a similar sound or look, or can produce songs that sound similar to others. Additionally, songwriters and musicians may use sounds and themes from their predecessors to bring an old sound into a new age. But when does sounding too similar cross the line between scènes à faire—common themes borrowed from one’s musical idols—and copyright infringement?
Elusive evidence
For copyright infringement, the law requires a showing of copying and substantial similarity between the copyrighted work and the accused work. Evidence of actual copying is almost always elusive. Sometimes it does exist, such as when the accused infringer, their agent or record company is provided with a demo of a song.
Access is most often inferred, however, particularly by the very nature of popular music. It’s impossible for an artist to live and work in a vacuum when creating new material. Musicians and songwriters are constantly exposed to other artists via streaming apps, radio, television or even live performances. As a result, they may unintentionally incorporate portions of other songs, whether a melody, lyrics, or both, into their own.
For example, the singer Sam Smith amicably settled a copyright dispute with Tom Petty over the likeness between Smith’s three-time Grammy-nominated “Stay with Me” and Petty’s “I Won’t Back Down”. Smith acknowledged the similarities between the two songs and said that it was a “complete coincidence”. The matter was settled by Smith crediting Petty and his co-writers on Smith’s track.
The Beatles’ George Harrison found himself liable for copyright infringement over his song “My Sweet Lord” due to its similarity to Ronnie Mack’s “He’s so Fine”, a 1963 chart topper.
“For copyright infringement, the law requires a showing of copying and substantial similarity between the copyrighted work and the accused work. Evidence of actual copying is almost always elusive.”
Harrison said at trial that although he had listened to “He’s so Fine” years before, it was not on his mind when he penned “My Sweet Lord” in 1969. Nevertheless, Harrison was found guilty of “subconscious plagiarism” and had to pay $1.6 million to Mack. Harrison noted that he regretted that he didn’t notice the similarity earlier, as he “could have tweaked a note here and there with no effect to the feeling” of his record.
Most copyright infringement complaints don’t end as amicably or as quickly as the case involving Smith. When parties refuse to admit the similarities between musical compositions or when the similarities are not that easily recognised, the parties may end up in and out of court for years on end.
A long-running legal dispute
Such is the current situation with Taylor Swift’s “Shake It Off”.
On September 18, 2017, the producers of the song “Playas Gon’ Play” as performed by 3LW sued Swift for copyright infringement at the US District Court for the District of Central California over her smash hit “Shake it Off”. The “Playas” producers alleged that Swift infringed by copying a “six-word phrase and a four-part lyrical sequence”. A comparison of the lyrics in question reads:
