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By Chris Cooke | Posted on Wednesday 7 September 2022
As the tune theft authorized battle more than Taylor Swift’s ‘Shake It Off’ proceeds to go by means of the motions, her lawful crew are keen to block two of the plaintiffs’ expert witnesses and restrict the testimony of a 3rd. The authorities, you see, deficiency knowledge. Or so say Crew Swift.
This all relates to the US lawsuit being pursued by songwriters Sean Hall and Nathan Butler, who reckon Swift’s 2014 hit rips off their 2001 track ‘Playas Gon Play’. The latter track, recorded by 3LW, consists of the lyric “the playas gon play/them haters gonna hate”, although ‘Shake It Off’ famously consists of the line “the gamers gonna engage in, engage in, enjoy, perform, enjoy/and the haters gonna hate, hate, detest, hate, hate”.
The Swift facet to begin with got the lawsuit dismissed on the basis lyrics about players taking part in and haters hating ended up much too generic to be guarded by copyright in isolation. But the litigation was reinstated by the Ninth Circuit appeals court docket, and subsequent efforts to get it dismissed a second time – predominantly primarily based on the very same arguments as prior to – have been unsuccessful.
With the entire make a difference now heading to trial, Swift’s legal professionals have submitted new court docket papers taking difficulty with some of the professional witnesses that Corridor and Butler’s group intend to simply call. In a bid to have all those experts’ testimonies slice again or slash fully, the Swift side both question each individual expert’s credentials, or get problem with factors they have said in depositions that transpired or paperwork that ended up submitted during the discovery stage of this circumstance, or the two.
Amongst the 3 qualified witnesses is Loren Kajikawa, a Professor at George Washington University and 1 of all those musicologists that pop up in tune theft disputes of this type. His testimony will target on the software of the so called ‘extrinsic test’ that is commonly used in copyright circumstances like this one particular, which Swift’s legal professionals describe as getting the system of assessing “the aim similarities of the two will work, concentrating only on the protectable components of the plaintiffs’ expression”.
But, argue Staff Swift, Kajikawa “is not experienced, fails to use the extrinsic test and as an alternative offers his subjective views”. The critical trouble, they include, is that this certain music-theft dispute is all about the lyrics – so fundamentally it centres on the comparison of two literary works. But Kajikawa “has no degree in literature and no education in comparative literary assessment (past the possibility he may well have the moment taken an undergraduate class)”.
Swift’s legal professionals go on: “He has not go through any guides on comparative examination of lyrics or comparative linguistic evaluation, and he does not have any understanding as to the methodology made use of in the comparative linguistic examination of two works. He also does not teach literature or poetry and has under no circumstances written a song or lyrics”.
In actuality, they include, “Professor Kajikawa’s spot of analyze is the dynamics of race and politics. [And] like the individual with a hammer who sees everything as a nail, Professor Kajikawa argues that everyone who doubts the originality of combining a ‘players gonna play’ phrase with a ‘haters gonna hate’ phrase ‘signals an incapacity or unwillingness to recognise the validity of black vernacular expression’”.
“That assertion is not only insulting and baseless”, the Swift filing goes on, “but irrelevant to the extrinsic exam, which ‘assesses the aim similarities of the two functions, concentrating only on the protectable aspects of the plaintiff’s expression’, not subjective assertions as to the ‘validity’ of a claimed source”.
The future pro whose abilities is remaining questioned is there to give an view on a certain issue, which is: if the court was to conclude that ‘Shake It Off’ infringed ‘Playas Gon Play’, “what portion of the gains [from] ‘Shake It Off’ are attributable to that song’s [claimed] use of lyrics from the track ‘Playas Gon Play’”.
That expert is New York-primarily based attorney Bob Kohn and, say Group Swift, even though he may perhaps well be an professional on songs industry small business methods and audio licensing, he lacks know-how pertaining to that distinct question. “He plainly is not qualified to supply that or any of the other thoughts he has expressed in this case”, the Swift aspect claim, “and his deposition testimony confirms he is only earning it up as he goes along”.
Citing some of what Kohn seemingly stated in that deposition, the new filing goes on: “Plaintiffs count on an professional who opines that the allegedly infringed blend of public domain player and hater phrases is the ‘heart’ of ‘Playas Gon Play’, with out which ‘Shake It Off’ would drop all ‘force, which means, and energy’. But that qualified is a attorney who performs no musical devices and statements expertise since he saw The Beatles on ‘The Ed Sullivan Show’ and – like most if not all of us – listens to music”.
Last but not least, there is New York-dependent accountant Juli Saitz, who is also providing an opinion in relation to the ‘Shake It Off’ income, and what Hall and Butler could be in a position to declare if they prevail in courtroom. The Swift facet argues that a single of her specialist views in that area is just basic improper, even though also criticising her rebuttal of a report compiled by one particular of their industry experts, Barry Massarsky.
On the previous place, they produce: “Ms Saitz argues that it would be improper to allow for a copyright defendant to deduct taxes in calculating the defendant’s gains from the alleged infringement, since that would outcome in ‘double-taxation’ when the copyright plaintiff is taxed on an award of earnings. Nevertheless she admitted that is just the final result of the general theory of the Inside Earnings Code that each and every taxpayer pays taxes on the money he, she, or it receives”.
“Moreover”, they insert, “Ms Saitz’s belief that copyright defendants should really not be permitted to deduct taxes in calculating gains is trumped by the founded legislation that they might do so”.
With all that in brain, the Swift aspect concludes, “the courtroom need to exclude the pro views, testimony and studies of plaintiffs’ specialists Mr Kohn and Professort Kajikawa, and really should exclude Juli Saitz’s expert opinions, testimony, and reports as to the deduction of taxes and Mr Massarsky’s report and methodology”.