                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 28 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SEAN HALL, doing business as Gimme              No.    18-55426
Some Hot Sauce Music, an individual;
NATHAN BUTLER, doing business as                D.C. No.
Faith Force Music, an individual,               2:17-cv-06882-MWF-AS

                Plaintiffs-Appellants,
                                                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
