Taylor Swift, Trademarks and Music’s New Branding Model

If you’re ready to “party like its 1989,” you’ll have to talk to Taylor Swift first. The pop star recently applied to trademark that phrase and others related to her songs — a move that marks a shift in the industry, as artists, songwriters and music publishers increasingly become independent brands. But the case also raises questions about where artists and industry players might cross the line and damage their reputations.

Among the other phrases that Swift wants to trademark are “This sick beat,” and “cause we never go out of style,” both of which are lyrics from songs on her 1989 album. If she does secure those rights, it will prevent unauthorized use of those phrases in products including soap, sun care products, cosmetics, fragrances and bleaching preparations, among others.

Swift’s trademark quest could work out fine, or it could backfire, according to R. Polk Wagner, a professor at the University of Pennsylvania Law School, whose specialties include copyright and trademark law. “She could trademark every line from her lyrics, but there are real limits,” he said. “Every time she does that, she is risking money and risks [her] reputation. Twitter  She has to walk a careful line between being an aggressive brander, promoter and builder of the Taylor Swift brand and crossing that line into aggressively suing her fans and customers.”

“It’s a smart move,” adds Christopher Jon Sprigman, law professor at New York University’s School of Law and co-director of its Engelberg Center on Innovation Law and Policy. “She both has an interest in protecting what she views as her intellectual assets, which she thinks are some of these lyrics … and she does ultimately hope to be able to use some of these on various products, goods and services.”

Wagner and Sprigman discussed the implications of Swift’s trademark application and the changing business models in the music industry on the Knowledge@Wharton show on Wharton Business Radio on SiriusXM channel 111. (Listen to the podcast at the top of this page.)

“[Taylor Swift] has to walk a careful line between being an aggressive … builder of the Taylor Swift brand and crossing that line into aggressively suing her fans and customers.” –R. Polk Wagner

Baby Bibs and Knitting Needles

In seeking trademark protection for her song’s phrases, Swift is breaking new ground in testing the limits of the law, according to Sprigman. “Trademark law is meant to prevent consumers from becoming confused about the source of products,” he noted. For example, he said if the three stripes on Adidas shoes were to be used by another shoe brand, it runs the risk of confusing customers.

“The real question is whether Taylor Swift’s use of the trademark serves that purpose at all?” asked Sprigman. “When people see [the words] ‘This Sick Beat’ on a baby bib, do they think this baby bib comes from Taylor Swift and is licensed by her? Does that lyric communicate anything about the source of the product? That to me is an open question.”

Swift appears to have opted to trademark rather than copyright the phrases for a specific reason. Sprigman noted that copyright law, which gives rights to song lyrics, doesn’t apply to words and short phrases. That presents a difficulty in copyrighting a song title because it is a short phrase, although that problem doesn’t arise in copyrighting song lyrics as a whole, he said.

“Taylor Swift turned to the trademark law because what she wants to do is to pull little, short phrases out of her lyrics and have some kind of property right in them when they are applied to products and services — products like knitting needles, Christmas stockings, baby bibs and sweepstakes contests,” Sprigman continued. “She’s gotten imaginative, and her lawyers have cooked up this scheme.”

Partial ‘Propertization’

Yet, Swift may not get all the trademark protection she may desire for her phrases. “It’s not accurate to say that just because she can get a trademark even for 15 different kinds of products [for her song phrases], people can’t use [those] in any other context than what she wants,” said Polk. “Although we do allow the ‘propertization’ of these words, it’s not a complete ‘propertization,’ no matter how much the Taylor Swifts of the world would want it to be.”

“Trademark law is meant to prevent consumers from becoming confused about the source of products. The real question is whether Taylor Swift’s use of the trademark serves that purpose at all?” –Christopher Jon Sprigman

Theoretically, an artist could trademark all the phrases in a song, but it would not work across all cases, said Wagner. “You can trademark ‘Apple’ for computers but not ‘apple’ for apples,” he added, explaining that such protection may be sought for “unrelated” products or services.

Wagner noted that after Swift pulled most of her catalog from Spotify last year, best-selling country music singer Garth Brooks — another critic of streaming music platforms — launched his own online music store, GhostTunes. His venture promises a higher share of sales to artists, songwriters, labels and music publishers than what they would get from others in the industry.

Wagner said the moves by Swift and Brooks mark a new level of “recognition among prominent performers that they are major brands.” Many top artists today are not wedded to any specific channel or label, and some have their own labels, too, he added.

No Guarantees

“It is now becoming very common to think of yourself as your own personal corporation [and] brand,” Wagner said. “That, then, is going to lead these individuals and companies to probably be even more aggressive in the future about asserting intellectual property rights, and more aggressive about channeling their music or their goods in particular areas or distribution mechanisms. This is the just the absolute beginning of what we are going to see.”

Sprigman noted that the after the arrival of Napster in 1999 and a succession of peer-to-peer file sharing systems, the record industry has suffered a sharp decline in revenues from recorded music. With that, the emphasis in the industry has shifted to live performances and merchandise. “This is leads to … the growth of these brands for the stars and also for the next bracket of performers who are trying to build their brands.”

Both Wagner and Sprigman predicted that the U.S. Patent and Trademark Office would most likely grant Swift the trademarks she wants. However, they pointed out that there is no guarantee that those trademarks will be enforceable in a court, explaining that much will depend on the context of a case. “It is like getting a hunting license; it doesn’t give you anything unless you pursue it,” said Wagner.

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