`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 28 2019
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 18-55426
`
`
`D.C. No.
`2:17-cv-06882-MWF-AS
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`SEAN HALL, doing business as Gimme
`Some Hot Sauce Music, an individual;
`NATHAN BUTLER, doing business as
`Faith Force Music, an individual,
`
`
`
` v.
`
`
`TAYLOR SWIFT, an individual; et al.,
`
`
`
`
`
`
`
`
`
` Defendants-Appellees.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Michael W. Fitzgerald, District Judge, Presiding
`
`Argued and Submitted October 15, 2019
`San Diego, California
`
`Before: HURWITZ, OWENS, and LEE, Circuit Judges.
`
`
`Sean Hall and Nathan Butler (together, Hall) appeal from the district court’s
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`dismissal under Federal Rule of Civil Procedure 12(b)(6) of their complaint against
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`Taylor Swift, Martin Sandberg, and Karl Schuster (together, Swift) alleging
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`copyright infringement. The complaint alleged that Swift’s hit song Shake It Off
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`
`
`
`
`
`
`
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`(2014) illegally copied a six-word phrase and a four-part lyrical sequence from
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`Hall’s Playas Gon’ Play (2001). We have jurisdiction under 28 U.S.C. § 1291,
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`and we review de novo the district court’s dismissal under Rule 12(b)(6). See
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`Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). As the parties are
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`familiar with the facts, we do not recount them here. We reverse and remand.
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`The district court dismissed the complaint based on a lack of originality in
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`the pertinent portions of Hall’s work. See Satava v. Lowry, 323 F.3d 805, 810 (9th
`
`Cir. 2003) (“Any copyrighted expression must be ‘original.’ Although the amount
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`of creative input . . . required to meet the originality standard is low, it is not
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`negligible.” (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340,
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`345, 362 (1991))); see also 1 Nimmer on Copyright § 2.05[B] (2017) (noting that
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`originality is established when “the work originates in the author” and “has a spark
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`that goes beyond the banal or trivial”). Even taking into account the matters of
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`which the district court took judicial notice, see United States v. Ritchie, 342 F.3d
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`903, 907-08 (9th Cir. 2003), Hall’s complaint still plausibly alleged originality.
`
`See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`Originality, as we have long recognized, is normally a question of fact. See
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`Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850, 851 (9th Cir. 1938)
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`(stating that the “question of originality . . . is one of fact, not of law” (internal
`
`quotation marks omitted)). Indeed, as Justice Holmes long ago cautioned:
`
`
`
`2
`
`
`
`
`
`It would be a dangerous undertaking for persons trained only to
`the law to constitute themselves final judges of the worth of
`pictorial illustrations, outside of the narrowest and most obvious
`limits. At the one extreme, some works of genius would be sure
`to miss appreciation. Their very novelty would make them
`repulsive until the public had learned the new language in which
`their author spoke. . . . At the other end, copyright would be
`denied to pictures which appealed to a public less educated than
`the judge. . . . [A]nd the taste of any public is not to be treated
`with contempt.
`
`
`Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).
`
`Justice Holmes’ century-old warning remains valid. By concluding that,
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`“for such short phrases to be protected under the Copyright Act, they must be more
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`creative than the lyrics at issues here,” the district court constituted itself as the
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`final judge of the worth of an expressive work. Because the absence of originality
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`is not established either on the face of the complaint or through the judicially
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`noticed matters, we reverse the district court’s dismissal under Rule 12(b)(6).1
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`REVERSED and REMANDED.
`
`
`1 Swift argues that this Court should affirm the district court’s decision on other
`grounds. However, we decline to do so. The district court may consider Swift’s
`alternative arguments on remand.
`
`
`
`3
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`
`
`
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