Magazine article Information Today

Shaking off a Copyright Claim

Magazine article Information Today

Shaking off a Copyright Claim

Article excerpt

It's the little things that count, because you know that good things come in small packages, and, as always, the weak shall be made mighty. Except when it comes to copyrights--then it's really all about playas, they gonna play, and haters, they gonna hate. And it's all about Taylor Swift and 3LW and the limits of what can and cannot be copyrighted.

The federal U.S. Copyright Act of 1976 ( code/text/17/102) encompasses a very broad definition of what can be copyrighted. The law provides that "original works of authorship" are entitled to copyright protection whenever they are "fixed in any tangible medium of expression." Several categories are included as works of authorship, such as literary works; musical works (both music and lyrics); dramatic works, along with any accompanying music; choreographic works; pictorial works; motion pictures; and sound recordings. This open description has the effect of allowing virtually all forms of creative, original expression to be entitled to copyright protection.


But there are limits. You cannot copyright an idea, although you can copyright the specific expression of that idea. You cannot copyright a procedure, which limits the copyright protection for lists of instructions, recipes, operating manuals, etc. You cannot copyright a process or system, although you may be able to get a patent on it if it is novel and non-obvious.

Taylor Swift and songwriters for 3LW, an R&B/hip-hop group, got into a battle over the copyright protection afforded to relatively short phrases. In 2017, the writers of "Playas Gon' Play," a 2001 song by 3LW, filed a federal copyright infringement lawsuit against Taylor Swift and other songwriters of the 2014 Swift release "Shake It Off" (bloom 0S102; login required).

'Playas, They Gonna Play'

The 3LW song included the lyrics, "Playas, they gonna play / And haters, they gonna hate. ... That ain't got nothin' to do / With me and you." Thirteen years later, "Shake It Off" used the lyrics, "'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 / I shake it off, I shake it off." Musically, the songs do not sound alike, but on the basis of the lyrics, the songwriters of "Playas Gon' Play" asserted that "Shake It Off" infringed on their copyright.

While the definition of copyright is very broad, a single word in the definition provides a limiting element that proved to be central to this case. That word is "original," as in an "original work" of authorship. Certain things simply can't be original. The 2 + 2 = 4 mathematical formula can't be original. The Titanic struck an iceberg. That's a fact, and it can't be original. James Cameron can fashion an entire blockbuster movie around that fact, and while he may control the copyright to the story of Jack and Rose, that copyright does not extend to the ship hitting the iceberg--anybody else can use that fact in their works.

De Minimis

Short phrases and expressions, including titles, personal names, and slogans, are generally not protected by copyright. Chapter 300 of the Compendium of U.S. Copyright Office Practices (copyright . …

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