The Haters are Still Hating
You remember the girl group, 3LW? The one that Ghost’s wife used to be a part of? Yea, them. So apparently, the writers of their song “Playas Gon’ Play” (hereinafter the “Song”), Sean Hall (“Hall”) and Nathan Butler, (“Butler”) just heard the Taylor Swift song “Shake it Off” earlier this year, and decided that it was infringing on their copyright in the lyrics to the Song. Hmmmm…
The 3LW song goes like this “Playas, they gonna play. And haters, they gonna hate.” And everyone knows how the Taylor Swift song goes, and in the rare event you do not, it goes like “the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate...”. Sooooo, we’re talking about a group of words used together so commonly in the English language that it’s almost a requirement to use them in that order. And someone convinced Hall and Butler that they had a copyright infringement claim for it. And an attorney took their money to draft this complaint. And now U.S. District Judge Michael Fitzgerald is humoring them and allowing them to amend the complaint he just dismissed for failure to state a claim, even though he’s pretty much convinced that there’s nothing they can come back with to change his mind.
The success of Hall and Butler’s claim will depend upon whether or not the allegedly infringing content meets the test of copyrightability. In order for a work to be protected under copyright law, it must be (1) an original work of authorship, and (2) fixed in a tangible medium of expression. To be an original work of authorship means the work must be independently created by the author and possess a minimum degree of creativity. Independent creation means the work can’t be a copy of someone else’s work. The creativity threshold is very low, only requiring some spark of creativity. In order for a work to meet the fixation requirement, it must be in a medium that allows for the work to be perceived, communicated or reproduced, for more than a short period of time.
Players, playing and haters, hating is as unoriginal as it comes. The use of one word (e.g. player) almost necessitates the use of the other (e.g. play), and I’m fairly certain neither Hall or Butler were the first (and certainly won’t be the last) to use that phrase or terminology. To grant copyright protection to individuals for the use of common terms would stifle progress and creativity, which is the actual reason for granting copyright protection in the first place.
I hope they don’t waste any additional money in lawyer’s fees pursuing this lawsuit. I’m inclined to believe this was them, just taking their shot. They should probably just cut their losses, shake it off, and keep moving.
