I knew IP was trouble when I walked in
By the age of seventeen she became the youngest person who single-handedly wrote and performed a number one country song. Three years later she was the youngest to receive Grammy for the Album of the Year. Her latest album sold more in one week than any other one in twelve years and made her the first and only one to have three albums sell more than a million copies in the week of release.
Yes she is Taylor Swift, who is remarkable in many ways. Besides a numerous number of artistic achievements she (or somebody high up among her top executive team) is also the one who realizes the importance and incredible potential of building up and protecting intellectual property rights. We can, without exaggeration, call her a real IP Guru. How has she obtained that title and what has she achieved at that field? In today’s IPintz article we look into that matter.
Party Like It’s 1989, This Sick Beat, Cause We Never Go Out of Style, Could Show You Incredible Things, Nice to Meet You Where You Been? are songs from her new album 1989 and also pending trademark applications before the USPTO. She is also the proud owner of trademarks Swift and TS in stylized characters, Swiftake and of course her own name. In trademark matters she is represented by Milom Horsnell Crow Rose Kelley PLCwho came up with a quite innovative idea. Every single one of the above mentioned applications were filed as one trademark in one class. This means that if for example This Sick Beat application is rejected in relation with clothes it does not affect the same application regarding cosmetics.
Some did not like that new trend she is getting familiar with. Avant-garde and progressive metal band Peculate wrote a counter song This Sick Beat adding that “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.”
He has probably never heard of the judicial rule that “it is a basic principle marking an outer boundary of the trademark monopoly that, while trademark rights may be acquired in a word, symbol or device, acquisition of those rights does not prevent others from using the word, symbol or devise in good faith in its descriptive sense, and not as a trademark.” [Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 269 (2d Cir. 1995)]
This means that any fair use, including a nominative or descriptive one is allowed. So she doesn’t own these words anyway. But haters gonna hate hate hate…
She is also familiar with the importance of domains. She was the first one to buy .porn and .adult sites with her name as a preemptive strike on trolls.
Besides .porn. and .adult 508 new gTLDs have been continuously being delegated since 23th October 2013. The so called sunrise period, where priority claims can be submitted for .porn and .adult new gTLDs started on 2nd March 2015. Swift’s team obtained both sites by the end of the month based on her Taylor Swift trademarks.
About a month ago she was in spotlight again when she withdrew her album from Apple’s online store. In the original concept for the three months try-out period the users were not obligated to pay and at the same time the authors did not receive any royalty. In her request she wrote that this kind of royalty payment method was unfair for starting bands whose financial stability is not yet secured. Not that she needed that royalty from Apple, she just stood up for her fellow musicians, she added. We may never know if she had been truly honest, but the sure thing is that Apple retreated immediately and granted her wishes.
However she had to retreat in a similar IP battle just a few days after the agreement with Apple. The contracts with the photographers covering her concerts proclaimed that they could only use them once and for every other use they must obtain her written consent. Photographer Jason Seldon addressed Swift in an open letterclaiming that “With all due respect to you too Taylor, you can do the right thing and change your photo policy. Photographers don’t ask for your music for free. Please don’t ask us to provide you with your marketing material for free.” Her team and the National Press Photographers Association reached an agreement and they eased the rules.
This year Taylor may be up against something that cannot be solved with a polite request. On the 20th of July she announced the launch of her merchandise campaign in China. The problem is that TS1989 which refers to her initials and year of birth means something entirely different in the east-Asian country, namely the massacre of Tiananmen Square in 1989 which is still a very strict taboo. Many speculate that this can lead to a scandal, however as a Foreign Policy analysis indicated Chinese censors are becoming more skilled and now they are able to distinguish between provocateurs (in their eyes) like Bjork who cried out “Tibet, Tibet” and Taylor whose music is anything but political. However, things can get out of hand and her apolitical status in the People’s Republic of China could rapidly change.
It is worth noting that Taylor’s public image is highly controversial and it is not our task here is to pick sides. But it is for sure that she understands what the twenty-first century is about, namely how to protect what you have created with creativity and hard work. Being a young beautiful woman, a talented musician and having a sharp tongue is not enough anymore. Step by step you have to build a brand and protect it at all costs.
Pintz & Partners LLC