Taylor Swift is well known for her passionate songs about past boyfriends. Swift has been romantically tied to several well known celebrities including Taylor Lautner, Joe Jonas, and John Mayer. In June 2012, John Mayer claimed that Swift’s song “Dear John” is about him. Lyrics in the song include: “Dear John, I see it all, now it was wrong / Don’t you think 19 is too young to be played by your dark twisted games, when I loved you so?” During an interview with Rolling Stone, Mayer said that he felt “really humiliated” by the song. Mayer explained that “[i]t made me feel terrible” and that he “never did anything to deserve that.” Although Swift and Mayer were in a romantic relationship before the song’s 2011 release, Swift denies that the song is about him. Swift recently told Glamour that Mayer was “presumptuous” to think the song was about him. Swift added, “I never disclose who my songs are about.”

At this time, Mayer has not said whether he will pursue legal action against Swift. Although legal action is unlikely, let’s assume for purposes of this blog entry that Mayer decides to make a defamation claim against Swift. One of the key elements to consider in a defamation claim is whether Mayer could establish that the song was of and concerning him. As noted earlier, Swift denies that the song was about him and claims that she never discloses who her songs are written about. Mayer could certainly argue that (1) the title of the song (“Dear John”) is a direct reference to him and (2) the timing of the song’s release and the specific lyrics indicate that he is the one she is singing about. Mayer may also argue that they had a very public relationship that was widely reported by the media; however, this still doesn’t establish that the song is necessarily about him. It is highly unlikely that Mayer could show that a third party believes that the song is about him. Ultimately Mayer would face a steep uphill legal battle.

Another major issue in a possible legal action against Swift is that Mayer is clearly a public figure. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that public officials are required to show “actual malice.” The Court defined “actual malice” as “knowledge that [the statement] was false or reckless disregard of whether it was false or not.” Id. at 280. Three years later, the Supreme Court extended the actual malice standard to public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). Because Mayer is a public figure, he will have to prove that Swift’s lyrics satisfy the actual malice standard. As such, Mayer’s public figure status makes his case considerably more difficult. As noted earlier, it would be very difficult for Mayer to establish that Swift’s song was about him. It is also highly unlikely that Mayer would be able to show that the lyrics were either false or that Swift was reckless. In brief, the song’s lyrics simply do not support a conclusion that the lyrics were false or reckless.

Similar hypothetical legal claims have been discussed in regards to Carly Simon’s 1972 hit song “You’re So Vain.” Like Swift, Simon has refused to disclose publicly who her famous song was about written about, thus making any suit against her highly unlikely. However, the analysis would certainly change if a person is specifically identified in a song. For example, Lindsay Lohan sued rapper Pitbull in 2011 for his song “Give Me Everything” that included her name. The song included the lyrics: “I got it locked up like Lindsay Lohan.” As a result, Lohan sued Pitbull and claimed that the song hurt her reputation. Specifically, the lawsuit claimed that “[t]he lyrics, by virtue of its wide appeal, condemnation, excoriation, disparaging or defamatory statements by the defendants about the plaintiff are destined to do irreparable harm to the plaintiff.” Pitbull responded that he believed mentioning Lohan would enhance her career and keep her relevant. Interestingly, Lohan had filed a $100 million lawsuit against E-Trade only a year earlier for a commercial she alleged was about her.

In conclusion, the three most important factors to remember: (1) Swift should continue to refuse to publicly divulge who her songs are about; (2) legal action against Swift by bitter celebrity ex-boyfriends like John Mayer are unlikely to succeed; and (3) Lindsay Lohan is lawsuit happy.