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Was it “banal” or creative enough to merit copyright protection?

“The playas gon play.”

Just ask Sean Hall and Nathan Butler. They wrote those words and recorded them in a song produced back in 2001. As evidenced by their recent appellate court filing in California, they aren’t about to give up their claim that the lyrics were ripped off by megastar Taylor Swift. They want a legal recovery.

In other words, they’re ready to play, not walk away from potentially receiving money damages pursuant to a court finding of copyright infringement.

It’s debatable just how much of an uphill slog they face in prevailing on their claim Their case was already dismissed by a lower court this year. The judge in that matter ruled that their lyrics, even if close to those employed by Swift in a huge 2014 hit entitled “Shake It Off,” lacked sufficient creativity to qualify for copyright protection. The court termed them as “banal.”

Hall and Butler aren’t’ going to let that go, and are still smarting over the Swift team allegation that their legal filing was a mere “money grab.”

Appellate claims must argue some material error in law committed in a lower court, and the Hall/Butler team alleges that a mistake was clearly evidenced that merits a new trial and fresh look.

Their appeal specifically argues that questions surrounding creativity and originality are properly within the realm of “subjective value judgment that belongs to a jury.” Their pleading contends that the lower decided the case as a matter of law, when in fact a verdict should have been delivered by a jury panel weighing in with a factual determination.

The case is now before the 9th U.S. Circuit Court of Appeals.

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