Taylor Swift made headlines in January when her lawyers filed trademark applications for phrases that appear in her song lyrics. The public reaction has been mixed. Some have praised her business strategy and the fact that she is controlling aspects of her intellectual property assets. Others see it as an overreach that infringes on free speech. Many simply wondered, how is this legal?
Are Song Lyrics Trademark Subject Matter?
Short answer: Yes, provided they meet other legal requirements for trademark protection .
Taylor Swift’s songs, comprising of a musical composition and lyrics, are firmly protected by copyright law, which prevents unauthorized reproduction of the songs. However a single phrase in a song such as “This sick beat” or “Show you incredible things” is generally not protected under copyright law because it lacks originality. But similar to trademark protection of slogans of popular brands such as Have You Had Your Break Today?® (U.S. Reg. No. 1912835- McDonald’s Corp.) or Don’t leave Home Without It® (U.S. Reg. No. 1151224- American Express), trademark protection is available to phrases or even individual words in songs, provided they meet other trademark protection requirements. Some examples of those requirements include limitations on immoral or scandalous subject matter, descriptive and generic trademarks, or marks that are likely to cause customer confusion.
The Business Strategy Behind Taylor Swift’s Trademark Filings
Short answer: Digital and Traditional Merchandising.
Trademark protection provides exclusive rights to use a word, phrase, or logo in relation to a class goods and services under which the trademark is filed (such as apparel, cosmetics, perfumery, or any of the other 45 International Classifications in the USPTO). Taylor Swift’s songs then act as a promotional vehicle to popularize her catch phrases and drive sales of her merchandise which span dozens of categories of goods from household items to perfumes and apparel.
Another strategy is defensive. Taylor Swift’s fans want to wear t-shirts and buy merchandise displaying her lyrics. There is market demand and a brand to protect. If Taylor Swift (or her label) does not assert trademark protection, she will have limited rights to enforce licensing and royalties as well as limited control over the quality of goods promoted under the various catchphrases. Failure to do so may disappoint fans and even damage her music career.
Musicians have always sold T-Shirts at their shows, but in the age of declining record sales merchandise has become a more important part of artists’ revenue strategies. Major artists are estimated to make as much as $225,000 per show on merchandise sales and have more control over the design and production of the process than ever.
Some may find Taylor’ Swift’s federal trademark filing strategy overly calculating or even rise to the level of trademark bullying. Taylor Swift is protecting her rights. Swift is growing into a branding powerhouse that could one day compete with the likes of Martha Stewart or Jessica Alba’s Honest Company® (two examples of celebrity branded household goods companies).
Don’t doubt Taylor’s ability to Shake it Off when it comes to critiques, her team is business savvy in today’s digital promotion and merchandise environment, and as she eloquently puts it: “haters gonna hate hate hate”.
Author: David N. Sharifi, Esq. is a Los Angeles based intellectual property attorney and technology startup consultant with focuses in entertainment law, emerging technologies, trademark protection, and “the internet of things”. David was recognized as one of the Top 30 Most Influential Attorneys in Digital Media and E-Commerce Law by the Los Angeles Business Journal in 2014. Office: Ph: 310-751-0181; firstname.lastname@example.org.
Disclaimer: The content above is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content above does not create an attorney-client relationship. All trademarks are the property of L.A. Tech & Media Law Firm or their respective owners. Copyright 2015. All rights reserved.