NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FILED
OCT 28 2019
MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT
SEAN HALL, doing business as Gimme
Some Hot Sauce Music, an individual;
NATHAN BUTLER, doing business as
Faith Force Music, an individual,
Plaintiffs-Appellants,

No.

U.S. COURT OF APPEALS

18-55426

D.C. No.
2:17-cv-06882-MWF-AS
MEMORANDUM*

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
dismissal under Federal Rule of Civil Procedure 12(b)(6) of their complaint against
Taylor Swift, Martin Sandberg, and Karl Schuster (together, Swift) alleging
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.

 (2014) illegally copied a six-word phrase and a four-part lyrical sequence from
Hall’s Playas Gon’ Play (2001). We have jurisdiction under 28 U.S.C. § 1291,
and we review de novo the district court’s dismissal under Rule 12(b)(6). See
Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). As the parties are
familiar with the facts, we do not recount them here. We reverse and remand.
The district court dismissed the complaint based on a lack of originality in
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
of creative input . . . required to meet the originality standard is low, it is not
negligible.” (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340,
345, 362 (1991))); see also 1 Nimmer on Copyright § 2.05[B] (2017) (noting that
originality is established when “the work originates in the author” and “has a spark
that goes beyond the banal or trivial”). Even taking into account the matters of
which the district court took judicial notice, see United States v. Ritchie, 342 F.3d
903, 907-08 (9th Cir. 2003), Hall’s complaint still plausibly alleged originality.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Originality, as we have long recognized, is normally a question of fact. See
Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850, 851 (9th Cir. 1938)
(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,
“for such short phrases to be protected under the Copyright Act, they must be more
creative than the lyrics at issues here,” the district court constituted itself as the
final judge of the worth of an expressive work. Because the absence of originality
is not established either on the face of the complaint or through the judicially
noticed matters, we reverse the district court’s dismissal under Rule 12(b)(6).1
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