You Must Be THIS Tall for Copyright Protection

Last time I said you should “hate hate hate” a decision from the Ninth Circuit Court of Appeals that reversed Taylor Swift’s victory in a copyright case based the lyrics, “’Cause the players gonna play, play, play, play, play/ And the haters gonna hate, hate, hate, hate” from “Shake it Off.” The trial court held that the phrase Swift was accused of infringing—“Playas, they gonna play/ And haters, they gonna hate”—wasn’t original.

The trial court’s reasoning turned on the “short phrase doctrine,” which is the idea that short phrases or mere slogans aren’t deserving (for one reason or another) of copyright protection. I said this was less a doctrine and more a truism. It’s not so much that short phrases are categorically barred from protection, but that they never meet the requirements for protection. (At least where the elements are words—we seem more tolerant of giving protection to short musical phrases.)

The Ninth Circuit’s decision in Taylor Swift’s case came as something of a shock because it pretended that the “short phrase doctrine” didn’t exist in any capacity. The decision was also incoherent. I mean, if you want to call the “doctrine” into question, have at it, but don’t pretend that you don’t see the elephant in the room that everyone keeps pointing to. And don’t pretend the issue has anything to do with Bleistein’s famous observation about the irrelevance of artistic value.

Walking and Talking at the Same Time

Earlier this week, a court reached the opposite conclusion on nearly identical facts. That case involved the song “Walk It Talk It” by Migos, which includes the lyrics, “Walk it like I talk it.” Migos and a lot of their friends were sued by Leander C. Pickett a/k/a M.O.S., who wrote and performed a song called, “Walk It Like I Talk It.”.

The court did not say that phrases were non-protectable merely because they were short. Instead, it said that they were non-protectable because they were both short and commonplace, a distinction not found in the Taylor Swift case. Thus, the court looked at 32 uses of “walk it like I talk it” that pre-date M.O.S.’s use of the phrase.1Because the matter was being decided on Rule 12(b)(6), the court necessarily had to take judicial notice of those uses. The phrase, therefore, is not protectable. And because the phrase was the only point of similarity between the two songs, “Walk It Talk It” didn’t infringe “Walk It Like I Talk It.”

But are the lyrics the only point of similarity? Listen to the songs again—this comparison at TMZ is useful. It’s not just the lyrics, but the intonation, rhythm and stress, especially if you slow down the Migos version, are similar.2How much of that is sound recording—i.e., the creativity in the recorded performance—and how much is part of the composition? Sorry, I hope I didn’t just give you a headache.

Migos“Migos” by K. WONG is licensed under CC BY-NC-ND 4.0

We’re not done yet. Now trying saying “Walk it like I talk it” several times in a row. Don’t you find yourself naturally falling into the same cadence as M.O.S. and Migos? Your cadence might not be as prominent, but it’s there, isn’t it? Indeed, a 2005 rap song—cited by the court—using the same lyrics falls into the same cadence. If an unprotected commonplace phrase is naturally spoken or sung in one dominant way, the that cadence is itself non-protectable. This is a version of the Merger Doctrine—which really is a doctrine—which holds that if there are only a few reasonable ways to express an idea, some facts or other non-protectable matter, the expression it itself not protectable. Otherwise, we’d be giving copyright protection to material that we’ve excluded from copyright protection.

So, the court might have cut its analysis off too soon, but it probably reached the right conclusion. Had he survived this motion, he was going to have difficulty proving access, since the only point of contact was between a DJ who apparently played the song a lot back in 2008 and a co-employee, who is now associated with Migos.

Sidebar: Adventures in Copyright Registrations: Sound Recordings Aren’t Musical Compositions

If M.O.S. appeals, he’ll have the additional problem of explaining why the court should use his registration for the sound recording of “Walk It Like You Talk It” for a lawsuit about the musical composition of “Walk It Like You Talk It.” Sound recordings and musical compositions are different, even if they’re for the same song. And they are regarded as separate copyrights. Sound recordings protect the artistry of the performance—i.e., the singing, the instrument playing, perhaps even the sound engineering—whereas the composition protect the songwriting. You can only infringe a sound recording by copying the recording itself, for example, through sampling. But this isn’t a case about sampling. It’s about the composition, and M.O.S. doesn’t have a registration for his composition. Although copyright in his composition and sound recording arose simultaneously as soon as he recorded it, his right to enforce the copyrights depends on registration, and he doesn’t have a registration for the copyright that matters.

Thanks for reading!

Rick Sanders

Rick is the litigation half of Aaron & Sanders, PLLC; and, from 2012 to 2014, an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. Vandy also happens to be where he got his law degree in 2000. After graduation, he practiced at a major intellectual-property law firm in Silicon Valley for a few years. He returned to Nashville in 2004, where he worked for a large Nashville firm, practicing as much intellectual-property law as he could, but also a lot of commercial law. He left that firm in 2011 to start Aaron & Sanders with Tara Aaron, so he could practice intellectual-property law full time and work with start-ups and other non-institutional clients.