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US Judge dismisses Taylor Swift 'Shake it Off' lyric as too 'banal’ to copyright: Nick McDonald comments

15 February 2018

In a copyright case brought against Taylor Swift, a US judge has declared the phrase "haters gonna hate" to be too "banal" to be protected. Commenting on the verdict, Nick McDonald, partner here at Potter Clarkson, said:

“The ruling in this case appears to have been driven by pragmatism, rather than the technical letter of the law.  However, in the UK, we could have seen an alternative outcome, especially if it were a more technically minded judge. In UK law the threshold is generally accepted as being very low for what constitutes a copyright work. In British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 it was accepted that a straight line or circle drawn on a piece of paper would confer copyright protection.
 
“Having said that, it has generally also been the position of the UK courts that titles and short phrases will not be deemed to be protected by copyright, because they are not unique, original or substantial enough. Allowing phrases like this, which will invariably bear some similarity to prior uses of phrases, to attract protection would open the floodgates to other copyright claims.
 
“The courts, both in the UK and US, don’t want that, and it is that policy view – rather than the pure logic of what is and is not protectable by copyright – that forms the basis of this and other copyright decisions on titles and short phrases. One can understand this position as a barrage of claims would clog up the courts.
 
“Of course, it is also the case that titles and phrases such as these lyrics can sometimes attract trade mark protection, both as unregistered marks that develop a reputation or even as registrations – a further reason why the court’s policy not to afford copyright protection is understandable.”

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