Can Triple J “Shake Off” Potential Taylor Swift Lawsuit?

Music fans all over Australia are being divided by the phenomenal flux of voting towards Taylor Swift’s hit song “Shake it Off” in triple J’s Hottest 100. Since Tuesday we’ve seen the pop icon’s hit song move from hottest 100 limbo to featuring in the betting spread, where it’s currently the 2nd favourite on Sportsbet to take out top spot.

As the Buzzfeed-driven #Tay4Hottest100 campaign continues to grow (much to the dislike of hipsters worldwide) a few pressing questions remain: Is Tay Tay eligible to win the countdown,  and can Triple J remove her from the voting?

The Hottest 100 Terms and Conditions

Legally Triple J can remove a song from the Hottest 100 list. Under the Hottest 100 terms and conditions Triple J reserves the right to “remove artists from the list who have benefited from competitions or commercial campaigns that incentivise fans to vote for them.“

This is where things get complicated, as there are many ways of interpreting what constitutes a “commercial campaign”.

So is a hashtag one of them?  It’s a tough one – although they’ve historically walked a fine line between commercial and non-commercial recent court cases have unanimously agreed on the commercial nature of Buzzfeed. It could be argued that the growth of the hashtag  has led to increased page impressions and therefore more ads served on Buzzfeed. This however begs the question of whether the commercial needs to be supported by the artist or whether it can take place organically.

Is Shake It Off even Eligible?

Things get even more confusing here. Earlier in the week Buzzfeed reported that a Triple J representative deemed Shake it Off ineligible as it wasn’t played on the station in 2014.

This however isn’t noted in the rules, which state that “Songs must have had their initial release between 1 December 2013 and 30 November 2014”. No Triple J playback hasn’t stopped songs from previously charting, dating back to songs from the likes of Alanis Morrissette and Green Day charting in their respective years of eligibility.

Triple J’s Chris Scaddan has reportedly told News Corp that the campaign is within the official rules, further contradicting previous claims. An official statement was yet to be released from Triple J at the time of publishing.

Can Triple J Backflip Now?

Given the controversy caused by this eligibility loophole it’s doubtful to see it unaddressed in future polls. However what does that leave for this year? Its a catch 22 for Triple J, they could remove the song from the voting list and appease their loyal listeners, or on the other hand that can keep the song in the list and succumb to the Taylor Swift bandwagon.

If removed, Triple J will have to prove that the song was voted for by the public as a result of ‘commercial campaigns’. If they cannot prove commercial influence the song may be excluded unfairly. Future court battles aren’t impossible to rule out here – as bizarre as it would be Triple J could find themselves having to ‘shake off’ a lawsuit.

A Lesson For All Competition Organisers

Legal documents, including a robust terms and conditions should consider every scenario and cover you in the case of anything going wrong, from fraudulent entries to acts of God. Have your competition and voting terms and conditions reviewed by an experienced lawyer to ensure you’ve bulletproofed. Remember that anything that can go wrong will go wrong!

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