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By Chris Cooke | Printed on Wednesday 7 September 2022
As the track theft legal fight in excess of Taylor Swift’s ‘Shake It Off’ continues to go by the motions, her legal team are eager to block two of the plaintiffs’ expert witnesses and limit the testimony of a third. The authorities, you see, deficiency expertise. Or so say Staff 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 music ‘Playas Gon Play’. The latter music, recorded by 3LW, consists of the lyric “the playas gon perform/them haters gonna hate”, although ‘Shake It Off’ famously contains the line “the players gonna enjoy, engage in, enjoy, enjoy, play/and the haters gonna hate, dislike, dislike, hate, hate”.
The Swift aspect initially bought the lawsuit dismissed on the basis lyrics about players taking part in and haters hating have been too generic to be protected by copyright in isolation. But the litigation was reinstated by the Ninth Circuit appeals court docket, and subsequent endeavours to get it dismissed a next time – primarily primarily based on the exact same arguments as just before – have been unsuccessful.
With the complete issue now heading to demo, Swift’s lawyers have submitted new courtroom papers taking concern with some of the qualified witnesses that Corridor and Butler’s staff intend to contact. In a bid to have those people experts’ testimonies slice back or cut completely, the Swift facet both issue each individual expert’s credentials, or choose situation with issues they have claimed in depositions that transpired or files that were submitted during the discovery stage of this circumstance, or both of those.
Between the three specific witnesses is Loren Kajikawa, a Professor at George Washington College and one of people musicologists that pop up in track theft disputes of this form. His testimony will target on the software of the so termed ‘extrinsic test’ that is generally utilized in copyright instances like this a single, which Swift’s attorneys describe as becoming the course of action of evaluating “the objective similarities of the two performs, concentrating only on the protectable things of the plaintiffs’ expression”.
But, argue Team Swift, Kajikawa “is not experienced, fails to implement the extrinsic exam and in its place offers his subjective views”. The vital challenge, they include, is that this unique tune-theft dispute is all about the lyrics – so basically it centres on the comparison of two literary performs. But Kajikawa “has no degree in literature and no education in comparative literary assessment (outside of the likelihood he may well have once taken an undergraduate class)”.
Swift’s legal professionals go on: “He has not examine any publications on comparative investigation of lyrics or comparative linguistic assessment, and he does not have any knowing as to the methodology applied in the comparative linguistic analysis of two works. He also does not teach literature or poetry and has by no means penned a music or lyrics”.
In reality, they add, “Professor Kajikawa’s place of analyze is the dynamics of race and politics. [And] like the particular person with a hammer who sees every thing as a nail, Professor Kajikawa argues that any person who uncertainties the originality of combining a ‘players gonna play’ phrase with a ‘haters gonna hate’ phrase ‘signals an inability 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 check, which ‘assesses the aim similarities of the two performs, concentrating only on the protectable components of the plaintiff’s expression’, not subjective assertions as to the ‘validity’ of a claimed source”.
The following pro whose expertise is getting questioned is there to offer you an belief on a specific query, which is: if the court was to conclude that ‘Shake It Off’ infringed ‘Playas Gon Play’, “what portion of the income [from] ‘Shake It Off’ are attributable to that song’s [claimed] use of lyrics from the tune ‘Playas Gon Play’”.
That specialist is New York-based mostly attorney Bob Kohn and, say Workforce Swift, while he might effectively be an qualified on music industry small business tactics and new music licensing, he lacks experience with regards to that particular dilemma. “He plainly is not qualified to provide that or any of the other views he has expressed in this case”, the Swift side claim, “and his deposition testimony confirms he is just earning it up as he goes along”.
Citing some of what Kohn seemingly stated in that deposition, the new submitting goes on: “Plaintiffs depend on an pro who opines that the allegedly infringed mixture of general public area player and hater phrases is the ‘heart’ of ‘Playas Gon Play’, devoid of which ‘Shake It Off’ would shed all ‘force, this means, and energy’. But that qualified is a attorney who performs no musical devices and statements expertise simply because he noticed The Beatles on ‘The Ed Sullivan Show’ and – like most if not all of us – listens to music”.
Finally, there is New York-based mostly accountant Juli Saitz, who is also delivering an viewpoint in relation to the ‘Shake It Off’ profits, and what Hall and Butler may possibly be ready to declare if they prevail in court docket. The Swift facet argues that a person of her pro opinions in that domain is just simple improper, whilst also criticising her rebuttal of a report compiled by one particular of their professionals, Barry Massarsky.
On the former position, they produce: “Ms Saitz argues that it would be poor to enable a copyright defendant to deduct taxes in calculating the defendant’s profits from the alleged infringement, simply because that would outcome in ‘double-taxation’ when the copyright plaintiff is taxed on an award of revenue. Nonetheless she admitted that is just the consequence of the standard theory of the Internal Income Code that every single taxpayer pays taxes on the revenue he, she, or it receives”.
“Moreover”, they add, “Ms Saitz’s feeling that copyright defendants must not be authorized to deduct taxes in calculating earnings is trumped by the set up regulation that they could do so”.
With all that in brain, the Swift aspect concludes, “the court should really exclude the specialist viewpoints, testimony and studies of plaintiffs’ gurus Mr Kohn and Professort Kajikawa, and really should exclude Juli Saitz’s skilled views, testimony, and stories as to the deduction of taxes and Mr Massarsky’s report and methodology”.