THR Blog   /   February 4, 2015

Could Show You Incredible Things—But That Would Be a Trademark Violation

Leann Davis Alspaugh

165033394 Getty Images

Heard any new dance songs lately—you know, the kind with “this sick beat”? Want to put a perky logo on your new parasol? Don’t be tempted by “Cause we never go out of style.” If you do, you could be hit with a cease-and-desist from Taylor Swift’s growing posse of lawyers whose sole job, it would seem, is to protect her revenue stream, er, career.

Trademarking advertising phrases is a long-standing practice to help differentiate consumer products. Think of Wendy’s “Where’s the beef?” or Nike’s “Just do it.” These slogans operate not simply with words, but also with visual associations such as cranky (but lovable) grandmas and recognizable typefaces and shapes. The Lanham Act, which defines trademarks, covers “…any word, name, symbol, or device, or any combination thereof…to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if the source is unknown.”

When the news arrived that singer Taylor Swift had trademarked the phrases “Nice to meet you, where have you been,” “Could show you incredible things,” and “Cause we never go out of style,” it seemed the next logical step from a singer who had already shown herself to be remarkably savvy in protecting her brand. (Swift has also trademarked “Party like it’s 1989,” leading one to wonder if Prince, whose hit 1999 contains the line “So tonight I’m gonna party like it’s nineteen ninety-nine,” has contacted his own lawyers.)

These phrases are lyrics from Swift’s 1989, the number one hit album of 2014. Swift’s much-hyped reinvention certainly propelled the sales of 1989, but she also showed that she continues to be one of the most legally circumspect artists of our time. Her most recent headlines involved her withdrawal, on November 3, of her entire song catalogue from Spotify, the online music streaming service. Swift, like other artists, objected to Spotify’s paltry penny per play deal, the revenue of which goes mostly to record labels rather than the artists. She also objected to the fact that Spotify’s free users see ads, something that she believes devalues her art. [Editor’s Note: Swift was back with Spotify by 2018, under her new contract with Universal Music Group.]

Reading between the lines in Swift’s Wall Street Journal op-ed from a few months earlier, one could see that the Spotify defection was probably already in the works. “There are many (many) people who predict the downfall of music sales and the irrelevancy of the album as an economic entity. I am not one of them,” Swift wrote. “Piracy, file sharing and streaming have shrunk the numbers of paid album sales drastically, and every artist has handled this blow differently.”

Swift, who has also copyrighted her name, her signature, her initials, and the titles of her 2008 album Fearless and Speak Now from 2010, is right to be concerned about the degraded value of artistic production in the digital age. Even organizations or individuals with a complex security infrastructure have experienced breaches with breathtaking consequences—witness the Sony email hacking scandal or the leak of tracks from Madonna’s upcoming Rebel Heart album. Incursions into the systems surrounding big movie studios or megastars have apparently become the new normal. In a way, it shows the democratizing effects of the digital world in which we now live.

The leveling effects of the digital domain can take a relatively benign form, such as blurring traditional musical genre boundaries. It is not at all unusual these days for a folksy ballad to be remixed as electronic dance music, making it a hit in two categories. But who owns the song? The songwriter, the DJ, or both? More than a mere cover version, more than just a mash-up or sample, a remix creates new circumstances in which the intellectual property of one artist is recast into intellectual property of a completely new kind. This new product will most likely be made, distributed, and consumed in completely digital forms. If nothing else, copyright protection in the brave new world of digital music has led to the exploding growth of media law.

Swift’s trademarking frenzy is another example of how artists are scrambling to maintain control over their work in the face of the digital tsunami. While her lyrics are not particularly profound, as trademarked utterances they do, according to the Lanham Act, distinguish Swift’s product from that of Lady Gaga or Katy Perry. But of greater interest in this case is how, in these digital times, the attempt to protect art tends to strangle free expression. Artists who have the means to send a platoon of lawyers on constant patrol for copyright infringement have tended to shift the balance between property rights and free speech. According to Vanderbilt law professor Michael Bressman in USA Today, “The danger is that you could have fairly well-heeled companies and individuals expansively taking over terrain and theoretically preventing others from using that terrain in the future.” If this is how Swift and other pop stars “handle the blow” of the digital domain, then we could find ourselves looking over our shoulders every time we utter a cliché. And that makes it hard to party like it’s 1989—or any other year.