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).

If You Have a “Party Like It’s 1989” Tattoo, You’re Screwed

Between yesterday and today, CNN, BBC, Rolling Stone, and Time all reported that Taylor Swift has trademarked a few phrases from her most recent album, 2014’s 1989. While I can certainly understand copyrighting a song, I find Swift’s actions today just a little over-zealous (okay, that’s a lie; they’re very over-zealous).

First, let’s draw a very clear distinction between copyrighting and trademarking. Copyrighting is something that most, if not all, creative artists do to protect their creative works (including songs, books, movies, etc.) against plagiarism and unsanctioned reproductions. Copyrighting is very normal, and no one gives it a second thought. Trademarking, on the other hand, is not the same as copyrighting. Trademarking means that one cannot produce any physical products with the trademarked material on them. For example, Apple’s logo is a registered trademark, and therefore can only be reproduced on merchandise like shirts or stickers with the explicit permission of the Apple corporation. Trademarking a logo or tagline makes a lot of sense in the business world. Trademarking random phrases (some as short as three words!) from a pop-music album does not.

While I can respect Swift for attempting to further her brand with what may appear as a savvy business move, I can’t understand how she intends to trademark certain phrases that are so general that I couldn’t believe any patent court could deliver ownership of them to her alone. Generic phrases like “this sick beat” and “party like it’s 1989” are among the pieces now off limits for production on a slew of products, including: aprons, napkin holders, walking sticks, and, indeed, “non-medicated” toiletries. Ironically, the lead single’s title, “shake it off,” is not on the list.

So here’s the takeaway: for anyone who turned 18 or 21 in 1989, no partying like it’s 1989—Taylor Swift now owns that year; that means no cute little party hats, no commemorative t-shirts, and no celebratory anniversary cakes with the banned phrase written in icing. Skaters and rockers, no scrawling “this sick beat” on your guitars and drumkits—Swift owns all sick beats that can be described as “sick” from now on. I really wonder just how problematic this is going to be for people who already have bits of these phrases tattooed on their bodies—do they have a certain time period during which they can have them removed without legal action…? Okay, if Swift gets “this sick beat” then I think it’s only fair I get to trademark “I like music.” In honor of this incredible piece of news today, I have composed a poem:

A Swiftly Flowing Love Ballad

I love a song’s rhythm and pulse

It’s become the only thing I want to know

This sick beat is such a treat

I hear it all up and down the street

It makes me think I’ll find my soul mate soon

I just hope it turns out to be you

And I feel lucky for just getting to listen

It’s just so nice to meet you, where you been

For all the time I was looking for new music

I could show you (some) incredible things

That’ll make you happy, and you’ll never lose it

And please don’t get upset if I get so riled up

‘Cause you know I think we’d never go out of style, bud

Let’s just walk together for a while

I’m sure we could do a couple miles

With your pop-star hand in mine

Here’s to a party like it’s 1989