A US court decided yesterday that the lyric in Taylor Swift's song 'Shake It Off' - "playas gonna play..." - is too banal to be protected by copyright. That should be no surprise in the UK where claims to copyright in very brief phrases have always been treated with scepticism by the Courts. As ever, the key consideration is whether there is a degree of originality or "sweat of the brow".
Alternatively, as in the NLA v Meltwater case, the frequency or volume of copying of numerous phrases increases the chance of one of the phrases being copied actually attracting copyright. In the Taylor Swift case, the claimants have the ability to amend their claim to try to support their case by finding more examples of potential copying. They have also suggested they intend to appeal the decision, so the case looks set to to run for the near future.
In terms of people being able to assess how much copying without a licence is "safe", there is no quantitative rule so, except in very clear situations, the safest route is to get a licence. In fact, Taylor Swift got permission from Fred and Richard Fairbrass (the band members of Right Said Fred) and gave them a writing credit for her single 'Look What You Made Me Do'. As a result, this generated a lot of positive publicity for both her and Right Said Fred last year.
'Lacks the modicum of originality and creativity '"The lynchpin of this entire case is thus whether or not the lyrics 'Playas, they gonna play, and haters, they gonna hate' are eligible for protection," he wrote. "In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases 'playas… gonna play' or 'haters… gonna hate', standing on their own, no more creative than 'runners gonna run'; 'drummers gonna drum'; or 'swimmers gonna swim.' "The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. "The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection," Fitzgerald added.