Lizzo (Photo by Kevin Winter/Getty Images for RADIO.COM)
When we parted back in the hazy late days of 2019, we were deep in the weeds, reviewing the depth and breadth of copyright protection for short literary works. In particular, we were examining the works claimed by songwriters who had asserted claims against pop maestros Taylor Swift and Lizzo.
The two songwriters who are suing Taylor Swift for infringement assert rights in the following: “Playas, they gonna play / And haters, they gonna hate.” A short work to be sure, and one that expresses an idea that is not particularly profound, But, as we know from Feist Publications, Inc. v. Rural Telephone Service Co., and its progeny, the standard for “originality” under the Copyright Act is minimal. Unlike patents, as the Supreme Court wrote, the “sine qua non of copyright […] is that the work is original to the author.” So, to be copyrightable, a work need not be novel or unique; it just needs not be copied from another author and evince at least an extremely low amount of creativity. Verily, almost any ingenuity qualifies, no matter how “crude, humble, or obvious.”
The Ninth Circuit acknowledged as much in the Swift case, finding that plaintiffs’ material met the “extremely low” bar required for protection. This accords with decisions reached by other courts. In OG Int’l, Ltd. v. Ubisoft Entm’t, for example, the court held that even stick figures could qualify for copyright protection. So, when considering how many words are needed to cross the line from “short phrase” — which is not protectable — to a “short literary work” – which is protectable — there are a number of guiding principles. In Phillips v. Murdock, the court analyzed the phrase “Wisdom Bible of God,” and found it to be too short and too rote to be protectable. This phrase, notably, was used as the title for a book, which weakened the claim given the code’s prohibition on title protection, and simply combined words routinely used to describe the work at issue.
Contrast that with the Eight Circuit’s decision in Applied Innovations, Inc. v. Regents of the Univ. of Minnesota, which addressed a series of short test statements used in educational settings. The court found that these test statements were protectable because while they were “short, simple, declarative sentences,” they were “not merely fragmentary words and phrases within the meaning of 37 C.F.R. § 202.1(a).” The court found these short statements protectable even though some were revisions of prior works, because they constituted “distinguishable” variations of the earlier material.
The Second Circuit’s approach, as seen in Salinger v. Random House, Inc., delineated what is protectable from what is not by noting that “a cliche or an “ordinary” word-combination by itself will frequently fail to demonstrate even the “minimum level of creativity necessary for copyright protection,” but such protection is available for the “association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.” This counsels that short phrases can be protectable depending not just on the words but the presentation of expression and the author’s analysis and emphasis.
This case, it should be said, reverses a finding of “fair use” by noted fair use maximalist Judge Pierre Leval back when he was a district court judge. The court notes that Judge Leval’s fair use finding was erroneous because it failed to recognize that while and “ordinary phrase may enjoy no protection as such […] its use in a sequence of expressive words does not cause the entire passage to lose protection.” Thus, while “the “ordinary” phrase may be quoted without fear of infringement, a copier may not quote or paraphrase the sequence of creative expression that includes such a phrase.
Swift’s case has now been sent back to the district court for discovery and further development of the record, which will likely include depositions ventilating how the plaintiff songwriters and Swift’s team developed the competing player-hater songs.
The case against Lizzo (at least the one we will be discussing) will not reach the discovery stage or even the courthouse. She had a massive hit with Truth Hurts, which topped the Billboard Hot 100 list for many weeks running. The most oft-quoted line from that song is its opener: “Just took a DNA test, turns out I’m 100 percent that bitch.” The problem, though, is that Lizzo 100 percent stole that line (allegedly) from a tweet written by British singer Mina Lioness. After initially denying that the line had been copied from Lioness, Lizzo eventually changed her tune and reached a deal to provide credit and compensation to the original creator of the line.
This phrase, like the phrase in the Swift case, is likely creative enough to be protectable and provides one of the more compelling moments in the song. Short, punchy, and memorable, one can easily see a jury finding the lines to have value and be within the ambit of copyright. And one can easily see why settlement would be the preferred course.
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.