Musicians Blurring the Lines Between Trademark and Copyright Protection

In the wake of the diminution of value of various income streams, including mechanical royalties from publishing, musicians are looking for new ways to make money.

Last year, Taylor Swift made headlines when she filed trademark registration applications for several of her song lyrics and titles. The reigning pop queen is seeking to obtain marks such as “This Sick Beat” and “Cause We Never Go Out of Style” for goods ranging from wigs to cookware.

While Swift certainly generated a lot of media attention, her trademark ownership tactic is not novel. Rather, it reflects a growing trend for pop stars, entertainers, and musicians to seek to trademark lyrics as “merchandise catch phrases.” Jimmy Buffet’s Margaritaville Enterprises, LLC has more than 700 pending trademark applications and registrations. The estates of Michael Jackson and Elvis Presley have also obtained trademark registrations for song lyrics and titles.

Trademark v. Copyrights

While both are intended to safeguard intellectual property, trademarks and copyrights offer distinct legal protections. Song lyrics are typically protected via copyright registration. Under federal law, works of authorship that have been tangibly expressed in a physical form, such as songs, books, movies, and works of art, are subject to copyright protection. Once a copyright is registered, the holder can control how the work is reproduced, distributed and presented publicly, as well as sue infringers in federal court.

In contrast, a trademark is a word, phrase, symbol, and/or design or product configuration that identifies and distinguishes the source of the goods of one party from those of others. Common examples include brand names, slogans, and logos. Federal registration in some circumstances creates a legal presumption of ownership nationwide, and provides the exclusive right to use the mark on, or in connection with, the goods or services listed in the registration.

Blurring the Lines

Trademark law is intended to protect consumers from being deceived and purchasing inferior goods, or from being confused as to the source of those goods. However, musicians are increasingly using it as a sword to prevent other businesses from exploiting the song lyrics and phrases. Even if artists like Swift never actually use the marks in commerce, they can still attempt to exclude others from commercializing their lyrics while the application is pending.

This practice is thus fraught with hazards when a trademark is sought to usurp copyright. Common phrases in songs now will be fought over, and usages both in copyright and trademark will be blurred.

Do you have questions about this topic or would like to discuss your intellectual property or entertainment needs? Please contact me, Ron Bienstock.