Swift marks off more legal rights for music

tswiftEver uttered or jotted down these phrases?   Party like it’s 1989. This sick beat. Cause we never go out of style. Could show you incredible things.

Careful. Govern yourself accordingly: pop superstar Taylor Swift has laid legal claim to these words and more. Not as musicians typically do, just with copyright. Instead, she is pursuing a legal strategy that’s getting a lot of online attention. She’s seeking to trademark her lyrics, applying for legal protections for several catch lines from her newest album 1989 and especially as these might be applied to an array of goods or products.

This isn’t an utterly unique legal tactic. But Swift’s raising eyebrows because of her market power and her aggressive protection of her works and more broadly her brand.

 

Swift already has gone after those she sees as undercutting her creative rights, getting her music taken down from Youtube and Spotify. But why pursue trademark versus copyright protections now?

Trademark protection

As Swift herself has observed, haters are gonna hate, but she has sold more than 4 million copies of 1989. The album has been such a hit that companies have tried to sell merchandise, without her approval, quoting her  lyrics. If she can trademark key lyrical phrases, this could help protect her brand from competitors, big and small, and, in theory, giver her exclusivity in marketing goods.

For those who need a primer or refresher on the differences between copyright and trademark protections, check here or here and here for discussion of celebrity personas and marks.  As for Swift’s legal strategy, Billboard published an interview with New York lawyer Richard Rochford, where he explained that “unlike copyright law, trademark rights don’t require the phrases to be absolutely unique,” so it may be easier for her to gain some protections versus if she pursued only copyrights.

Music merchandising

Others see the songstress setting herself up to market a range of her own merchandise and pursuing needed legal protections for those goods: That makes some economic sense, especially in light of how the music business has changed. The industry, as observers well have noted, has seen revenue dwindle from music itself — recordings (vinyl albums, CDs, or digital downloads) that once produced big money. Instead, concerts, live performances, and tours generate the money now for musicians — and a chunk of that change comes from sales of T-shirts, posters, coffee mugs, you name the goods.

Licensing of character-related merchandise for the broader entertainment, television, movie,  and celebrities category, an industry group reports, is the largest such classification, accounting for $2.66 billion in royalty revenues and an estimated $51.44 billion in retail sales in 2014. A recent study found that hard-core music fans, if engaged more with marketing of goods and performer outreach, could spend as much as $2.6 billion more each year than they do now.

While not all musicians have Swift’s market powers, they’re clearly more engaged than ever in figuring how to make money these days — with the help of counsel, of course. They’re also not alone in seeking legal options: Michael Buffer, a wrestling commentator, has trademarked his phrase, “Let’s get ready to rumble!” Paris Hilton has trademarked “that’s hot!” and litigated over it. And there are others.

Free speech protest

All these claims, however, not only aren’t going unnoticed: Swift’s, in particular, hacked off a performer named Ben Norton.

He’s been quoted as saying: “Trademarks are a direct attack on one of the most fundamental and inalienable rights of all: our freedom of speech. If you give the bourgeoisie an inch, they will take a mile… and everything else you have in the process. They have already privatized land, water, and words. After language, they will next try to privatize air. But, although the rich can try, they will never truly own the words we use and the language we speak.”

Oh, and as the perfomer Peculate, he’s also posted this protest: