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When Are Short Phrases in Songs Protectable?
It's a common fact pattern: A songwriter alleges that another songwriter has infringed the lyrics of Song A by using a similar short phrase, frequently a current slang phrase, in the lyrics of Song B. Claims like this do not often succeed because "words and short phrases such as names, titles, and slogans" are "not subject to copyright." 37 CFR §202.01.
So even though a short phrase like "just do it" might be protectable as a trademark, it is not copyrightable, and the mere presence of such a phrase in both Song A and Song B is not enough to make Song B an infringement, even if plaintiff proves access and copying. See, for example, Lessem v. Taylor, 766 F. Supp. 2d 504 (S.D.N.Y. 2011), in which the parties' works both included the phrase "this is how we do."
Against this background, the Ninth Circuit's October 28 decision in Hall v. Swift, No. 18-55426 (slip op.) (Swift) is an exception that proves the rule, or perhaps suggests a new rule altogether — it's not easy to tell. In Swift, the alleged infringer was superstar Taylor Swift, whose song "Shake It Off" included lines allegedly copied from a lyric in the song "Playas Gon' Play" (Playas) by plaintiffs Sean Hall et al. "Playas," released in 2001, earned a place on MTV and the Billboard chart, was performed multiple times on national television, and the album that contained the track was certified platinum.
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