Not the swiftest

It is so tiring.  But that, to some extent, is what they’re counting on.

Taylor Swift abusing trademark, again, of course.  And everyone else not understanding that the nature of the latest version of that abuse, discussed below, is the widespread misunderstanding of what trademarks do — protect goods and services associated with them by use — and what they don’t — which is protect slogans or other clever word combinations.

But muh brand building!

No.

Item, via Billboard:

Why Taylor Swift Trademarks [sic] Her Lyrics and Why Other Acts May Follow Suit

Taylor Swift has made it clear to the world she controls her brand, and one tool the singer leverages regularly to achieve this goal is trademark law. Swift’s team has been regularly filing trademark applications for lyrics and other slogans under her holding company, TAS Rights Management LLC, striking down infringers in the process. But does it really work, and is this approach for everyone?

Earlier this month, Swift moved to trademark key phrases from her music: the title of her upcoming album Reputation, her latest single “Look What You Made Me Do” and one of the lines from said single, “The old Taylor can’t come to the phone right now.” Swift plans to use the phrases on a variety of licensed merchandise, from t-shirts to notebooks and guitar picks. “Look What You Made Me Do” is already emblazoned across t-shirts on Swift’s online merch store, which has likely generated significant sales in conjunction with the singer’s controversial Ticketmaster Verified Fan campaign that rewards merch and music buyers with a better shot at good tickets.

“Striking down”?  Well, here’s what it says:

Etsy shop owners who pedal [sic] unofficial, Swift-inspired goods have been seeing a spike in cease and desist letters, according to BuzzFeed. While the number of takedown requests hasn’t been revealed, BuzzFeed notes that only three of the 15 Swift-themed gifts included in an earlier listicle of theirs are still available on Etsy. Sure, that’s not a scientifically valid sample, but it’s a reasonably reliable sign that Swift’s lawyers have been on a tear lately.

The items in question include a T-shirt that includes a lyric from a Taylor Swift song, which is verboten thanks to the Swift empire’s aggressive trademarking of phrases used in her songs. Most recently, Swift’s lawyers filed for trademarks on phrases from her most recent album, including “party like it’s 1989” and “this sick beat,” a surprisingly generic phrase that Taylor Swift most certainly did not coin.

Other recently trademarked phrases include “Nice to meet you. Where you been?” and the sentence fragment “could show you incredible things.”

Once approved, this latest collection of terminology will be added to the growing list of phrases and imagery that cannot legally be used on third-party merchandise.

This is just “trademarked” garbage. No, it’s not impossible for song lyrics to have legitimate trademark status — here‘s a kind of down-the-middle, book-report treatment of the issue; here’s a law professor being quoted as saying it’s totally cool, though I don’t see his explanation of how.  (“Nice to meet you. Where you been?” and “could show you incredible things”?  Really?!)  Not impossible but highly, highly probable.

Ultimately, though, it’s trademark bullying — the continuation of IP law by other means — from which the recipients of these baseless legal threats have no realistic recourse.

Trademark lawyer Ron ColemanIs it utterly insane to suggest that if a celebrity (whether an athlete, “artist” or whatever they’re famous for these days) coins or brings fame to a phrase, other people should not be able to profit from it without the celebrity getting some of the vigorish?

Yes, it’s utterly insane.  I won’t give Congress credit for thinking this through, but the way it turns out neither the trademark regime nor the copyright regime protect clever wordplay, and they’re not meant to.  Why?  Because not everything should be monetized. 

Especially when it already is.  Every time one of these fans sells something with a Taylor Swift “lyric” (and, really — puh-lease) on it, each use of that something is an advertisement for Taylor Swift.

There’s your monetization, Taylor.  Hope that helps you make the rent this month.

The Billboard article quotes our friend Rebecca Tushnet as saying, “It looks bad to sue your fans if they’re doing it because they are your fans.”

It looks bad, yeah, but so do a lot of things media companies can’t stop themselves from doing.

This is not new news.  Companies just can’t resist poking their fans in the eye because someone sells them a bill of goods that doing so is just the revenuey thing.  And except in the rare case involving a defendant motivated to fight back, big beats small pretty much every time.
Figures of justice, Bergen County Courthouse
And so homage is forbidden; unofficial inspiration is punished; the brand is “managed”; the fan base is still, in the main, slavishly dedicated to buying Officially Licensed Garbage; the legal fees are earned; the world spins on with a bunch fewer Etsy shmattes devoted to the star’s fabulous self; and all is well with the world.

No wonder everyone messages me on LinkedIn about how much they want to be an “intellectual property” lawyer to get in on the brutal fun! The only thing more inspiring than watching what happens when IP piggies “trademark” song lyrics to shut down what (sadly) passes for passionate, creative independent expression is enjoying the breathless enthusiasm used to describe it by a corporate business and legal media whose crayon-scribbles makes us dumber (no, having a trademark registrations is not the same as having an enforeable trademark) with each click.

What could go wrong?

Ron Coleman

I write this blog.

2 Replies to “Not the swiftest

  1. Good article.

    Cf. MCA Hogarth and the ridiculous attempt of a graming company to trademark ‘space Marine,’ an SF term from WAY back, and keep her from using it in her serialized book, ‘Spots, the Space Marine.’

    Has common sense vanished?

    We could heat the Earth with the Founding Fathers spinning in their graves. Hmmm. Maybe that’s what is causing global warming.

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