Trademark: The Importance of Brand-Artist Protection
In an industry dominated by corporate sponsorship, discussion regarding music-brand relationships has been a pressing topic of interest. Lately there has been an increase in consumer brands utilizing music and musicians for marketing and promotional efforts, as well as musicians using branding strategies to forward their careers. As this increasingly becomes an essential part of a musician’s career, efforts to protect brand identity have become vital.
Taylor Swift has been an industry leader in artist brand-building and has done a successful job of making her brand a widespread icon. Although musicians have been trademarking their band and artist names for years, earlier this month, Swift began further efforts in brand protection by trademarking key phrases from her music. Notably, “this sick beat” from her song “Shake It Off”, “nice to meet you, where you been?” from “Blank Space”, and “party like it’s 1989” have all been trademarked. Additionally, the title of her new album Reputation, her latest single “Look What You Made Me Do,” and lyrics “the old Taylor can’t come to the phone right now” have all been trademarked as well. This is arguably less about monetary revenue and more about protection against callously opportunistic third parties trying to make profit from Swift’s brand without the involvement or permission of her entity.
Trademark Law and Music
Going beyond the industry norm of plainly copyrighting a work, and filing for lyric trademark, is additional protection against any kind of theft or infringement. While not completely resistant to direct transgression, the main idea is to scare off anyone even thinking about stealing intellectual property from Swift’s brand.
The timing of Swift’s trademark filings is significant as it occurred just days prior to Rihanna winning her long-term court case in the U.K. against the popular clothing store, Topshop, for selling unauthorized T-shirts with her face on the front. This case emphasized the idea of “passing off,” which specifically exploits an unregistered trademark (in this case, Rihanna’s image). Artists are naturally concerned that an image used in this way could be read by the public as an implicit endorsement of their product, and as recorded music sales fall, musicians are strictly managing their licensing rights in order to receive maximum possible revenue from all brand exploitations.
While it appears this move by Swift and her lawyers was to obstruct unlicensed third parties from flooding the market with unauthorized products, if the application is successful, it could open the doors for her to start selling her own exclusive This Sick Beat-themed products, for example.
Although making headline news, Swift is not alone in the move to trademark lyrics. Beyoncé, Britney Spears, and Madonna have all filed trademark applications in the past for their lyrics, but were less successful and eventually abandoned those applications. This often happens because of a lack of uniqueness and brand association in the phrase being trademarked. Song titles, on the other hand, have had more luck with trademark application. For example, David Bowie once trademarked “Ziggy Stardust,” which was successful mainly because of its distinctiveness. Madonna, on the other hand, applied to have the title of one of her songs “Material Girl” trademarked, but it was denied due to generality.[i]
Trademarking lyrics can also lead to controversial situations within an artists’ fan base because fans are the ones who are most likely to misuse trademarked property. For example, online store Etsy, who manufactures unique and customizable handmade or vintage items, gives fans the ability to sell homemade merchandise of products with lyrics from popular songs, thus giving fans the ability to illegally profit from an artist’s brand. Most likely, fans are not intentionally trying to infringe upon an artists’ property, but it is up to the artists to decide how strictly they enforce their trademark. Artists could technically go as far as filing lawsuits against their own fans, but that would be unhealthy for the artist’s entity.
In order to keep the proposed trademarks valid, Swift will need to continually prove use of the trademark, whether this be through music, merchandise, or other methods. With new albums to come in the future, it will be of significance to see how Swift and other artists design and distribute products that utilize trademarks from previous work. Even if the product is not selling, artists may still continue to manufacture products with the mark just to uphold the validity. This is a difficult area to navigate in the recorded music industry, even for Swift. After having filed her trademarks for lyrics from her album 1989, the trademark applications were abandoned in January 2017 due to lack of a statement of use.
The possibility that more people follow in Taylor Swift’s footsteps is becoming more apparent as more artists want increased protection for their brands. There is recognition throughout the industry that branding is now extremely important for artists today, and with that, more artists seem to be trending towards aggressive branding tactics such as trademarking lyrics. Artists in the modern music industry are constantly focused on shaping their public image the same way businesses do, and with that comes increased protection of intellectual rights. Artists are in fact their own entities, and they must protect their own brands.
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Trendell, Andrew. “Lawyers Respond to Taylor Swift’s Attempt to Copyright Phrases from New Album ‘Reputation’.” NME, 7 Sept. 2017, www.nme.com/news/music/lawyers-respond-taylor-swifts-attempt-copyright-phrases-new-album-reputation-2135122.
By Will Lenart and Alexander Stewart
