By Amy Yoon
The future of trademark law has a surprising new face – Taylor Swift.[1]Swift is certainly no stranger to media scrutiny, but rather than garnering attention for her volatile love life, she is now at the center of what seems to be a new wave of trademark rights for recording artists.[2] Trademark rights are crucial for any artist as popular as Swift; she is more than just a singer – she is a brand. And with that brand comes a horde of zealous fans that are more than willing to purchase goods branded with her namesake.
While recording artists are the public face of a popular hit song, they play a more nuanced role within intellectual property law. For instance, copyright law distinguishes between a songwriter, a publisher, and a recording artist.[3] The songwriter and publisher are conferred rights of public performance and reproduction, and as such copyright holders, they receive royalties each time the song is performed – regardless of who performs it.[4] But a recording artist’s rights are much more limited under copyright law.[5] The recording artist only has a right of reproduction, such that the artist receives royalties only when his or her specific version of the recording is played.[6]
The popular music-streaming program, Spotify, is a perfect example of the disparity between what a recording artist receives and what the record company or songwriter receives.[7] In a very publicized departure from Spotify, Swift’s representation pointed to Spotify’s problematic payout system.[8] Spotify differs from other music streaming services like Pandora because Spotify must negotiate payout structures with each record label; the label then distributes those royalties accordingly to its recording artists.[9] Thus, the main source of revenue for a recording artist is then through the sale of CDs or merchandise.[10]
This is why trademark rights are so important for recording artists. Branded merchandise makes up a significant portion of recording artist’s income. Swift made headlines when she filed trademark applications for several of her popular lyrical phrases from her recent album, 1989.[11]Such phrases, include “This Sick Beat”, “Cause We Never Go Out of Style”, “Party Like It’s 1989” and “Nice to Meet You. Where You Been?.”[12] Swift has received some backlash for her attempts to trademark these phrases, with many criticizing her for attempting to own the English lexicon or for trying to impede on others’ First Amendment right to free speech.[13]But Swift is not the first celebrity to trademark a phrase – so why all the media attention?
Paris Hilton successfully trademarked her infamous catchphrase “That’s hot” for use in connection with various entertainment services and alcoholic beverages.[14] Michael Buffer, a U.S. wrestling commentator, trademarked the phrase “Let’s get ready to rumble”, a catchphrase that has generated more than $400 million.[15] Thus, celebrities have managed to trademark popular catchphrases relatively painlessly in the past.
Take for example, Swift’s application for the phrase “Nice to Meet You. Where You Been?” – a lyrical phrase from her recent album, 1989. Swift filed three applications based on intent to use under a section 1(b) filing basis.[16] The first application claims it will use the phrase on entertainment services, educational services, public appearances, electronic newsletters, and contests and sweepstakes.[17] The second claims the phrase will be used on apparel, clothing, aprons, headbands, and footwear.[18] The last application claims the phrase will be used on paper products, printed products, stationary, stickers, removable tattoo transfers, and art supplies.[19] The sheer variety of goods and services Swift thinks will sell based on her lyrical phrase demonstrates the power behind her name as a brand. Swift has filed for 121 trademarks in total, with 54 of those applications registered in the US market.[20]
Once Swift gets a successful trademark, she will be able to stop anyone else from using her trademarked phrases on merchandise. By filing applications based on intent to use, Swift is essentially carving out a market for herself while simultaneously preventing others from profiting off of her brand.[21] If the U.S. Patent and Trademark Office (USPTO) approves of her application and publishes her lyrical phrases as a trademark, Swift must demonstrate that she is indeed using that trademark in commerce on all of the approved goods and services from her application.[22]
It is still uncertain whether Swift will be able to successfully trademark lyrical phrases. But the outcome of her attempts might mean a new wave of intellectual property rights for recording artists. This may mean a shift from the less lucrative copyright protections to a heavier emphasis on trademarking popular lyrics for the sake of merchandising. This could correct an imbalance that copyright poses between a songwriter and recording artist.
[1] Tim Lince, Taylor Swift’s Trademarks Fuel Media Misreporting and Protest Songs, World Trademark Review (Feb. 4, 2015),https://www.worldtrademarkreview.com/Blog/detail.aspx?g=61ccf10f-885e-4aa6-9d04-3421f8c7e3b4.
[2] Id.
[3] 17 U.S.C. § 106(5)-(6).
[4] Eamonn Forde, Taylor Swift’s ‘This Sick Beat’ May Be The World’s First Trademarked Lyric, The Guardian (Jan. 29, 2015, 8:51 PM),https://www.theguardian.com/music/musicblog/2015/jan/29/taylor-swift-this-sick-beat-worlds-first-trademarked-lyric.
[5] 17 U.S.C. § 106(6).
[6] Lee Ann Obringer, How Music Royalties Work, How Stuff Works (May 24, 2003), https://entertainment.howstuffworks.com/music-royalties1.htm.
[7] Spotify Artists, https://www.spotifyartists.com/spotify-explained/#royalties-in-detail (last visited Apr. 12, 2015).
[8] Pamela Engel, Taylor Swift Explains Why She Left Spotify, Business Insider (Nov. 13, 2014, 12:16 PM), https://www.businessinsider.com/taylor-swift-explains-why-she-left-spotify-2014-11.
[9] Spotify Artists, supra note 7.
[10] Ford, supra note 4.
[11] Id.
[12] Kory Grow, Taylor Swift Trademarks ‘This Sick Beat’ and Other ‘1989’ Phrases, Rolling Stone (Jan. 28, 2015),https://www.rollingstone.com/music/news/taylor-swift-trademarks-this-sick-beat-and-other-1989-phrases-20150128.
[13] Id.
[14] Forde, supra note 4.
[15] Id.
[16] Justia Trademarks, https://trademarks.justia.com/owners/swift-taylor-1396036/page3 (last visited Apr. 12, 2015); see also Section 1(b) Timeline: Application based on intent to use, US Patent and Trademark Office, https://www.uspto.gov/trademark/trademark-timelines/section-1b-timeline-application-based-intent-use# (last visited Apr. 8, 2015).
[17] Justia Trademarks, supra note 16.
[18] Id.
[19] Id.
[20] Forde, supra note 4.
[21] Section 1(b) Timeline: Application based on intent to use, US Patent and Trademark Office, https://www.uspto.gov/trademark/trademark-timelines/section-1b-timeline-application-based-intent-use# (last visited Apr. 8, 2015).
[22] Id.