Taylor Swift Can’t Sue Me Yet

Last week, I posted an article detailing Taylor Swift’s statement that she intends on trademarking phrases from her most recent album 1989 like “this sick beat” and “party like it’s 1989.” I found the statement equally outrageous and unsurprising, as Swift seems intent on continuing to provide headlines in the wake of Swiftgate. [1] My disdain for this sort of play by Swift is fairly apparent.

Taylor Swift; Image courtesy: Getty Images for Moet & Chandon Astrid Stawlarz

Taylor Swift; Image courtesy: Getty Images for Moet & Chandon Astrid Stawlarz

But let’s back up for a moment. My disdain is not brought on by some anti-business philosophy or pro-starving-artist sentiments. That would make it super convoluted and essentially amorphous in meaning. It’s actually a lot simpler than that: my disdain is driven by how Swift’s actions are affecting her fans, and the subsequent results that may (and most likely will) occur. While I applaud Swift, and artists like her, for taking their business futures by the horns and seeking to transform themselves from solely artists into artists/business people, I do not agree with the way in which Swift is going about it. And apparently, neither do some of her fans.

Today, Buzzfeed reported that Swift’s lawyers began threatening Etsy sellers with legal action (which we all know is code for “we’re going to sue you the minute the ink dries”) if they didn’t take down products they were selling which referenced either Swift’s lyrics or music. Normally this would be a completely reasonable thing to request (though in this case, the “request” is actually a demand), except for 3 things:

  1. The respective Etsy sellers were selling one-off items, or just cobbled-together fan paraphernalia; hardly enough to either cause Swift any sort of economic hardship or make her any real money anyway
  2. Swift doesn’t own the trademarks yet
  3. Swift is biting the hand that feeds her (her fans), and appears happy to keep doing it

So let’s take these one at a time. Regarding point number one, we’re talking about little pieces of jewelry or candles with bits of Swift’s lyrics referenced—hardly enough to be of any real threat (or benefit) to her “empire.”

Number two, as is clearly spelled out in this Time article, in 2014 Swift merely applied for the trademarks she’s already aggressively protecting. That means she actually has no right to be sending letters with threats of legal action right now; at least not until the USPTO awards her ownership over her prospective trademarks. So, from a strictly legal point of view, Swift is very clearly jumping the gun on threats of any sort of trademark infringement lawsuit. [2] That means that this great song by progressive-metal artist Peculate is not only awesome, but completely legal (at least for the time being):

Now the last point, and actually the most important of the three: Swift is actively alienating her fanbase and leaving a bitter taste in the mouths of (possibly former) fans. Swift is so focused on protecting her (as of yet un-granted) trademarks that she is biting the hands that feed her. Let’s see what some of the Etsy sellers/Swift fans have to say:

One Etsy owner/fan said:

When we got the email that the trademark infringement occurred [(which, by the way, it hasn’t yet)], we were shocked…We were scared. We didn’t even make enough money for a lawyer…That same day, we saw that Taylor was attempting to trademark a variety of phrases trying to get them blocked from being sold. After seeing that, we grew a little angry and felt targeted by her camp. It didn’t seem like much of a coincidence anymore.

Another wrote:

Obviously an artist has a right to their art and people should respect that. But at the same time most people, like us, are trying to be respectful and contribute to the excitement that the artists brings into our lives. When that is taken away, it leaves us with a bitter taste in our mouths. It feels as though we don’t matter [to her.]

Swift’s actions will cost her very much in the long run, I believe. While it’s true that Swift is entitled to a share of any money made through sale of products that reference her material, I wonder if alienating her fans could possibly be worth the $1.60 she might receive in a one-time royalty. One commenter on the Buzzfeed article pointed out the reality that there is a ton of fan-made Harry Potter stuff floating around out there for sale, but J.K. Rowling doesn’t go around sending cease-and-desist letters to all those sellers.

Ironically, so many times in the music business, artists encourage fan art and expression; it helps them to build their brand and following. In fact, I see daily posts on my Twitter feed by the artists of fans’ work that they love. I’ve seen drawings of band members, bracelets and jewelry with the band name, and shirts with artists’ logos and lyrics all submitted by fans to the artists as away of showing their support. And so many times I find the artists so grateful for the allegiance and passion that they repost the pictures and encourage other fans to send in pictures. This is how you build a bridge to your fans.

In the music industry, it’s all about reputation: reputation amongst peers and reputation amongst fans. Few other things matter as much as those realities because those are the two realities that one can count on, particularly when things get tough. It can be a hard market, but if you’re an artist with a great reputation amongst peers, other artists will continue to want to play shows with you, vouch for you, encourage their fans to go see you. And your own fans will take up your flag. But if your reputation sucks, frankly, you’re lessening your chances of having any of those things.

Maybe Taylor Swift doesn’t care—I can’t and won’t presume to know. Here’s what I do know: her reputation is taking a beating in the music trenches, even if her wallet isn’t. 1989 sold a ton of copies and that’s great, but selling album copies doesn’t automatically rehabilitate one’s image amongst one’s contemporaries. Ironic though it may seem, the way things are going, Swift’s own fans are going to be a major headache for her camp in the future. Many of them feel betrayed, targeted, taken for granted. And that’s rule number one in this industry: never ever take your fanbase for granted.

 

Thanks to Mom for reading drafts of this.

 

Notes

[1] My first article on Swiftgate can be found here, with the follow-up piece here.

[2] This means that the poem I wrote at the bottom of my post last week is completely legal. (Though one could also argue quite successfully that it would be anyway whether Swift has been granted the rights or not since it falls under a creative parody license).

The Unflattering Spotify Light

With the first month of 2015 under our belts, things continue on in the music industry that hearken back to the last quarter of 2014 in almost predictable ways. YouTube and Apple are trying new paths forward for their music services (which I will cover in later posts), but perhaps the most telling of dynamics is what’s going on with Spotify right now.

Most anyone who paid any bit of attention in October-November of last year will remember the meltdown between artist Taylor Swift and music streaming service Spotify so cleverly termed Swiftgate. Purportedly over compensation (or lack thereof) for music streaming royalties, the spat between the pop star and the streaming service was a true story with legs, continuing for weeks on end. As each side released statements following Swift’s pulling of her entire catalogue from the service, Spotify CEO Daniel Ek and Swift’s management engaged in a series of statements, each seeking to portray themselves in a positive light.

Many of us within the music industry suspected that Taylor Swift’s underlying motive was a PR move enacted to boost numbers of Swift’s upcoming album release (and one which absolutely worked). Swift’s October release of her album 1989 blew well past one million in sales by 2014’s end, and has now been certified 4x Platinum (in excess of four million copies shipped). [1]

At the time I predicted that the dance was not over—that things would continue to evolve in 2015—and they have: last week, Spotify released a statement noting the termination of its contract with PR agency M&C Saatchi PR, originally tasked with heading up the music service’s accounts in the consumer, corporate, and b2b arenas. The dropping of M&C is telling in more ways than either company appears ready to admit.

It is impossible to avoid the conclusion that Spotify dropped M&C because the latter botched Swiftgate. Whether originating initially from M&C itself, or from Spotify CEO Daniel Ek, it is clear that their subsequent comments on Spotify’s royalty rates and on the questions of fairness were neither well-timed nor well-received within the music community. Instead of resolving the Swiftgate debacle for the music service, it managed to stir up even more questions. What Spotify should have done (or had done on its behalf by M&C) in the course of Swift’s scathing comments is essentially recuse itself of the whole situation; their response only made matters worse. In the end, Swift got all the publicity she (most likely) wanted, and her album blew through the roof with record numbers for the year. Spotify, on the other hand, was cast, yet again, in the same light that has proved unflattering and awkward for other services like Pandora and Rdio.

Though it might be too much to assert that M&C had any control over those events, it is clear that whatever work it did in the wake of Swiftgate was at the very least misguided. In the music industry, he said/she said battles are fought out in the trenches of the fanbases, not in conference rooms, and not in statements released to the media. Though I think Swift’s move was intended more to benefit herself than her fans, a great many of those fans felt the opposite, and will migrate away from Spotify to find her music elsewhere. Swift achieved her goal by spinning the argument as being about her fans and about fairness for artists. Though the truth may be debatable, what is indisputable is that Swift came off to many as having taken proactive action for the sake of her art and fans.

Spotify (and M&C by extension), would have been well advised to spin Swiftgate as a pop star being presumptuous and out of touch with her fanbase. Instead, Spotify/M&C’s purely reactive response allowed Swift to spin the debate as being about royalty rates and artist compensation. Thus, in “commenting on Swift’s departure,” Ek ended up obliged to defend his company’s compensation policy as a whole. A simple statement by Ek that Spotify was disappointed to lose Swift’s catalogue, but that he respected her decision, would have taken the legs out of Swiftgate. Instead, his ineffective efforts to justify Spotify’s compensation policy gave Swiftgate legs, made Swift into the David fighting Goliath, and left Spotify with enough lasting bad press to make it look around for a different PR agency.

Spotify’s dance with Taylor Swift may now becoming to an end with its dropping of M&C as its PR agency, but Swiftgate opened the door for other artists to take shots at the company. Royalty rates are not about to get any better, and life for the Spotify camp is not about to get any easier concerning artist compensation. The streaming music wars have only just begun; hopefully Spotify’s next PR firm will find the right ammunition to fight them.

 

Thanks to Dad, Charles Jo, Scott Menor, and Terrence Yang for reading drafts of this.

 

Notes

[1] It is important to note that RIAA certifications such as gold and platinum do not always mean copies sold. Over the last few decades, certifications have extended to sometimes include multiple discs within one album (a double-album, for example), or simply albums shipped by the record labels to retail outlets. More information on RIAA certification qualifications can be found here.

Navigating Swift Currents

As we come to the end of 2014, things seem quiet in the music-tech arena—at least for now. Yet it wasn’t too long ago that things were blowing up between Spotify and a number of artists over royalty rates and compensation practices. No doubt the most famous of these disputes (this year) was between the streaming service and popstar Taylor Swift. In what has come to be known by some in the tech and music communities as SwiftGate, Taylor Swift abruptly pulled her entire catalogue from Spotify just around the same time that she released her new album 1989. The response was nearly biblical.

All I saw for weeks on end was a back-and-forth exchange of words, accusations, arguments, and media coverage between Swift and Spotify. Even the service’s CEO Daniel Ek took time to release a public statement responding to Swift’s qualms with the service. This was definitely a story with legs—it just didn’t seem to die down.

Yet what struck me the most were not the statements made by either side, or even the statistics each used to bolster their respective cases. I was more focused on the amazingly divided response that Swift’s actions and statements generated from her fans. Personally, I’m ambivalent—I enjoy some of Swift’s music, though not all, and would not call myself either a major fan or a hater. When Swift wrote her op-ed piece in the Wall Street Journal earlier this year, though, there were immediately a couple of things I didn’t agree with. Perhaps the most presumptuous statement I thought, though, was:

“Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.”

This statement, though most likely made with the best of intentions, comes across to many within the music community as narrow-minded and out of touch. First, I readily agree with Swift that music is indeed art; art is subjective and highly personal to each person who experiences it. But art is not inherently rare. Nor should it be. This is an outdated concept that smacks more of a stuffy art-history academic than a modern musician. Art as a commodity, or even simply as a means of expression, should derive value from its inherent existence and experience; economic value is secondary to the very nature of what art is. In stating that art requires qualities of rarity and economic value in order to be valuable as art, Swift thus demonstrates a misunderstanding of what art functions as at its core. The concept of music as free is a notion that I will tackle in a later post (probably more than one), but what I will say with regard to Swift’s analysis is to point out how narrow its definition is. There are a great many artists who distribute their music for free, either online or as free giveaways at shows. By insinuating that these artists are devaluing their own art by making the decision to freely distribute, Swift does two things: 1) she demonstrates a worldview that is essentially narrow in its scope, and 2) she effectively succeeds in insulting these artists, more or less stating that they’re not smart enough to “know better.” It’s been a while since I performed as an artist in my own right, but even I still take offense to the above insinuations. Am I really to believe that Swift never played a pass-the-hat acoustic set at a Starbucks or diner somewhere when she was just starting out? [1]

But back to the response to Swift’s sparring with Spotify. If the goal was to generate a media response, then such a goal was certainly achieved. The responses from Swift’s fans in the general music community were far more diverse than even I would have thought. They ranged from those championing her decision and statements to those swearing they will never buy another Swift album from here on out (of course, the latter of those is hardly a statistic that can be confirmed at present). Yet what I focused on through this whole maelstrom of attention and biting back-and-forth comments was the way it could very conceivably (and most likely did) affect Swift’s fans on a psychological and emotional level.

Music, as stated, is emotional and highly personal. There’s a certain identification that one feels when one identifies with a particular artist, song or album. The psychology of wearing a shirt with an artist’s moniker on it effectively marks one as flying a flag for that artist—they become an extension of oneself—an extension of us. We use an artist’s music as a way to expand our sense of expression to the world. That makes our identification with that music highly volatile. Snap decisions like Swift’s have the opportunity to aggressively backfire (depending on one’s point of view, I suppose). Thus I question the long-term effect of Swift’s actions and statements. Yes, the immediate effect was fantastic for her: sales of her new album 1989 blew through the roof upon it’s release on Oct. 27, 2014. It opened at number one on the Billboard 200 and sold over 1 million copies. But I can’t help but focus on the gripes of those fans who felt personally betrayed by Swift’s removal of her catalogue from and subsequent sparring with Spotify. Are those fans going to go see her on tour? Buy a shirt? Tell their friends about her new album? Probably not. The way I see it, Swift has effectively traded long-term benefits for short-term gains. One thing I know about music and artist-loyalty is that it can be a fickle beast. The possible (probable?) effect of dividing her fanbase I think will constitute a major challenge for Swift to overcome in the future. She will have to spend time, energy, patience (and most likely money) trying to reconnect with those fans she might have alienated or even lost.

While it’s possible that the short-term gains may have been worth it to Swift and crew, I think the next currents will prove more difficult to navigate in the coming months. I think Swift has a lot of work ahead of her, and a lot of damage-control to partake in (ironically, not unlike the damage-control that Metallica faced in the wake of the whole Napster controversy). [2] I suppose only time will tell. We’ll reassess in the new year.

 

Thanks to Alyssa Shaffer, Charles Jo, Mom, and Dad for reading drafts of this. (And to Paul Graham for reminding me that thanks are as much in order for assistance as much as publication of the final product).

 

Notes

[1] Within the music community, the term “pass-the-hat” most readily refers to a (usually) acoustic set where no cover charge is required, and the artist relies mostly on the generosity of the audience to throw a few dollars in a hat or the guitar case to show their appreciation for and enjoyment of the performance.

[2] As many may remember, when Metallica waded into the thick of the Napster controversy in 2000 (most visibly driven by drummer Lars Ulrich), their rabid fanbase subsequently split into those who supported Metallica’s decision and those who vehemently opposed it. The alienation of a portion of their fanbase proved a challenge that took Metallica a number of years to surmount (and arguably one they are still surmounting). It affected both their sales of merchandise/tickets and their reputation within the music community.