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Taylor Swift’s Lyrics May Equal Trademarks

Back on October 25, 2014, Taylor Swift applied to register many trademarks including lyrics from her current album, 1989.  These include THIS SICK BEAT, NICE TO MEET YOU. WHERE YOU BEEN?, COULD SHOW YOU INCREDIBLE THINGS, CAUSE WE NEVER GO OUT OF STYLE, PARTY LIKE IT’S 1989. If you want to see for yourself, go here and search for “Swift, Taylor” as owner to see all of her applications and registrations. 

The Trademark Manual of Examining Procedures makes it clear that a title, or a portion of a title, of a single creative work must be refused registration.  This is because the title of a single work identifies a specific literary work.  It is not associated in the mind of a purchaser with true source of the good.  In addition, once copyright protection ends, and the work falls in the public domain, others must have the right to call the work by its name, which may be difficult if the trademark registration is still in effect. Moreover, if the work is not copyrighted, the public may copy it right away.  They would be clearly entitled to call it by its name at that point.

However, Ms. Swift is not registering these lyrics for her song or album.  Instead, the applications claim these will be used on a variety of goods in services ranging from obvious choices like “entertainment services” and “fan club services” to nods to her fans other interests like “knitting implements”, “beach umbrellas” and “art supplies.”  Her name, signature and initials have already received trademark protection for such goods and services. 

If she shows actual use on each of these goods and services in such a way that a consumer would connect that good or service to her as the origination, then she can have the trademark.  No one else can then use that mark in a confusingly similar way.  Any plans by anyone other than Ms. Swift to have knitting needles with THIS SICK BEAT should be scrapped.  However, if she cannot show actual use of the marks on the claimed goods and services, then the mark will not be registered.  So maybe the knitting needles project just needs to be put on hold.

However, that doesn’t mean that no one can use the phrase for other purposes.  If a third party is not using it to sell the product or service and use it as an indication of sources, then they may use it.  This is called “fair use.”  That means that Ben Norton, under the pseudonym Peculate, is free to sing “This sick beat” in his metal song “This Sick Beat” in protest of Ms. Swift’s application.  You, too, can listen to his two-minute song that repeats that phrase in a very non-Taylor Swift way here: https://www.youtube.com/watch?v=uipp8kiYU9I.  Fair use in action in a very metal way.

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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