Lizzo (Photo by Kevin Winter/Getty Images for RADIO.COM)
Taylor Swift and Lizzo are two shining stars occupying different spaces in the pop stratosphere, but they share the dubious distinction of being recently embroiled in legal spats over the allegedly unauthorized exploitation of short literary works written by other authors.
Never before have short literary works held so much value, importance, and cachet. The ability to express one’s self in a creative but pithy fashion drives online content creation, and public opinion now exalts tweets over long-form journalism.
So, in an age where tweets and Instagram captions reign supreme over most other forms of literature, it is in no way surprising that legal disputes have started to bubble up over the purloining of short written works.
But jurisprudence addressing such works has always been more Keats than tweets, with courts assessing poems and other works that while “short” are still pages or stanzas long. Only now, when literary works are shrinking to match the attention spans of this age, have courts begun to more carefully consider the creativity — and protectability — of pithy passages. Two recent cases, one in litigation and one settled, have thrust this issue into the public spotlight.
The first, and more developed, case involves T. Swift and can be summed up by the adage that “judges gon’ judge,” even when doing so improperly introduces the artistic sensibilities of the jurist into the legal process. While it has long been the rule that judges considering art and music copyright issues should consider only applicable legal doctrines and not whether a particular song is a bop, Swift’s case finds an appellate court again chastising a district court for letting its artistic sensibilities drive its decision.
Sean Hall and Nathan Butler had alleged that Taylor Swift’s “Shake it Off” copied without consent “a six-word phrase and a four-part lyrical sequence from their Playas Gon’ Play,” as the Ninth Circuit describes the dispute. The plaintiffs had written the song “Playas Gon’ Play” for the group 3 Little Women, more commonly known as 3LW. While they are now largely forgotten, 3LW was a major pop force at or around the turn of the century. In fact, the Playas Gon’ Play album, released in 2001, was certified platinum after selling more than a million copies.
The district court was unmoved by Hall and Butler’s claims, writing that the section that was allegedly copied was “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.” On that basis, the case was discarded, at least for a brief moment, into the rubbish can of history
The Ninth Circuit, though, only a couple of weeks after hearing oral argument on the issue, axed the district court’s order, holding that Hall and Butler’s complaint plausibly alleged originality. The Circuit also reiterated that originality is normally a question of fact and drops a classic Bleistein bomb on the district court. In 1903’s Bleistein v. Donaldson Lithographing Co. decision, the Supremes’ instructed that a legal education does not an art critic make, and that jurists should stay in their lane when deciding cases involved art, confining their analysis to legal questions and not those sounding in art criticism.
In the ruling, Judge Oliver Wendell Holmes, Jr. wrote compellingly (and, somewhat ironically, with great artistic flair) that:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke…. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge…. [A]nd the taste of any public is not to be treated with contempt.
Here, the district court flexed too much artistic judgment in deciding that the plaintiffs’ work lacked creative merit. While it is axiomatic that copyright protects a given expression of an idea, not the idea itself, and 37 C.F.R. § 202.1(a) holds that “words [or] short phrases such as names, titles and slogans” are not copyrightable, in applying those doctrines, the district court strayed into adjudging the artistry of the literary work at issue.
The issue is not a simple one, as there is no bright-line rule defining the number of words that an author must employ to qualify a short literary work for copyright protection. And the issue is complicated further by the fact that certain works are revered and considered particularly creative because of the fact that they express a feeling in a minimum number of words. Consider Billy Shakes, who wrote, “A rose by any other name would smell as sweet” — an expression of an idea that is beautiful, creative, and less than 10 short words long. Even Hemingway, that gruff old bear, extolled the virtues of brevity, noting that a work’s value can be judged not by the words used but those left out. We will look more closely at what was left out of the works at issue in the Swift and Lizzo cases when we reconvene.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
Kathryn Rubino is a Senior Editor at Above the Law, and host of 
