While there are precedents in the world of celebrity and sport, Swift is the first musician to make a pre-emptive strike against opportunistic third parties
Taylor Swift is valiantly protective of her copyrights, as last year’s withdrawal from Spotify proved. As arguably the most successful solo performer in the world, she has just moved to trademark certain lyrical phrases, notably “this sick beat” from Shake it Off as well as “nice to meet you, where you been?” and “party like it’s 1989”. This is arguably less about her wanting to boil every single thing she does down to a “revenue stream” and more about a pre-emptive strike against callously opportunistic third parties who might want to make money off her without either her involvement or her say so.
“What she is trying to do is to protect individual phrases within her lyrics where those lyrics have become catchphrases,” explains Alexander Ross, a partner at law firm Wiggin who specialises in music. “Once you have a trademarked phrase you have the right to stop someone else using it on things like merchandising.”
Trademarks are like copyright in battle armour. While not totally impervious from direct attack, their main function is to scare off anyone even thinking about mounting an attack.
“If you have a three-word phrase, to be absolutely certain you get copyright protection if someone else uses just those three words, you want to go for a trademark,” says Ross. “A trademark, if granted, applies to individual words – such as for logos and brand names.”
This is an area of music law that has been relatively untested in this way. There are some parallels and legal precedents – but they mainly come from areas like celebrity and sport. US wrestling commentator Michael Buffer, for example, managed to trademark the phrase “Let’s get ready to rumble” and it is estimated he has made over $400m from this deft move – some of which surely came from the coffers of Ant & Dec’s music career. Again in sport, “man of the match” was trademarked in 2002 and auctioned off in 2012 as a long-term goldmine.
Paris Hilton managed to trademark her “that’s hot” catchphrase and eventually settled with Hallmark in 2010 after a three-year dispute over it selling a greeting card bearing those two words alongside an image of her. It is not a straightforward process, however, as Twitter found out in its first attempt to trademark the word “tweet” in 2009 (a second swing in 2011 was successful) while Donald Trump failed to get a trademark for “you’re fired” (his catchphrase from The Apprentice).
Ross notes that even if you have been granted a trademark, it does not follow that you are automatically able to stop every unauthorised use of it. Plus there is no such thing as a global trademark. “You have to register a trademark in every territory for it to be effective in that territory,” he states. So this move may protect “this sick beat” in America but Swift will also have to seek a trademark in other legal jurisdictions such as Europe, making it a protracted process of patchworking.
The timing of her legal move here is made all the more interesting as it comes just days after Rihanna won her long-running court action in the UK against Topshop for selling T-shirts with her face on the front. At the heart of this case was the idea of “passing off” – namely exploiting 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 a tacit endorsement of the item in question. As their record sales fall, musicians have to be much more rigorous in protecting their images, works and trademarks so they don’t become an unwitting Krusty the Clown (“I heartily endorse this event or product”).
While it appears this move by Swift and her lawyers is there to impede unlicensed third-parties from flooding the market with products of variable quality, if the application is successful it could open the doors for her to start selling This Sick Beat-themed products – the most obvious being speakers and headphones (but probably not cardiac monitors).
Except there already is a brand active here – namely Beats By Dre, which was bought last year by Apple for $3bn. This is the same Apple who managed to grab control of the Apple trademark and license it back to Apple Corps, the Beatles’ company that inspired Steve Jobs to thus name his company back in 1976.
Now, that would be a trademark battle to fire the blood.
This article was written by Eamonn Forde, for theguardian.com on Thursday 29th January 2015 13.51 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010