Here’s what I learned from a day in Taylor Swift’s virtual law class – being famous really really stinks when it comes to yucky legal stuff! Apparently, haters are gonna hate, hate, hate. Notorious singer/songwriter Taylor Swift recently got sued (again), over lyrics from her song “Shake it Off.” As we know, Ms. Swift is famous for writing her own lyrics and songs about her ex-boyfriends, but someone is claiming that “Shake it Off” isn’t as original as her others. The song discusses how the players gonna play, play, play, the haters gonna hate, hate, hate, and the fakers gonna fake, fake, fake.
R&B artist Jesse Graham filed the lawsuit against Swift for a whopping $42 million, claiming that she is plagiarizing his song, entitled “Haters Gone Hate.” Graham’s lyrics claim “haters gon’ hate, players gon’ play, watch out for them fakers, they’ll fake you every day.” The songs themselves are not musically similar, but to the casual observer they do seem to follow the same theme.
Initially, Graham sought only a songwriter credit and a selfie with the singer. But Swift’s label – Big Machine Records – didn’t bite, so Graham followed up with the lawsuit. However, Graham faces a few obstacles in this case.
First, from a legal perspective, Graham isn’t necessarily entitled to full copyright protection for the lyrics in question. Under U.S. copyright law, music, including the beat and melody, is clearly entitled to copyright protection – assuming it’s original. And, of course, even lyrics by themselves may qualify for copyright protection — provided they contain a minimal degree of creativity. We don’t really like to judge an artist’s work, but it is certainly possible that Graham will not be successful in his claim because his lyrics just aren’t original enough. Haters do hate, and players do play – that’s nothing new in our rough and tumble world.
Second, Graham needs to prove that Swift’s song is substantially similar to his song. The two basic tenants of a copyright infringement suit are access and similarity. These factors work on a sliding scale, so the more access the less similarity that is required, and the less access the more similarity that is required. Access can be hard to prove and Graham’s song wasn’t overwhelmingly popular, so the similarity of the lyrics is more important in this case.
Third, Graham needs to overcome any defenses Swift may assert. The defense she will most likely allege is fair use. Fair use allows third parties to use portions of a copyrighted work for certain purposes and in limited situations. When considering whether use of a copyrighted work was “fair,” courts will look at the purpose and character of the use, the nature of the copyrighted work, the amount of the work used, and any market harm for the copyrighted work. Here, we will have to wait and see whether the court decides that Graham needs to prove that Swift’s use was not “fair” or whether Swift needs to provide her use was “fair”.
But these potential hurdles became more apparent when the Judge who was assigned to the case dismissed the lawsuit last Thursday, November 12. He used Swift’s own lyrics to dismiss the case, claiming that Graham did not plead enough factual evidence. “At present, the Court is not saying that Graham can never, ever, ever get his case back in court,” Standish wrote. “But, for now, we have got problems, and the Court is not sure Graham can solve them. As currently drafted, the Complaint has a blank space—one that requires Graham to do more than write his name. And, upon consideration of the Court’s explanation . . . Graham may discover that mere pleading Band-Aids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit.”
Given Graham’s right to appeal this decision, this case may or may not be over. But haters are still gonna hate, hate, hate. Fakers are also gonna fake, fake fake – all the way to the bank. On November 9, Swift settled a lawsuit that had been going on for almost a year and a half. Blue Sphere, an Orange County clothing company, sued Swift over use of their “Lucky 13” trademarks. Swift began using the phrase Lucky 13 paired with a shamrock on T-shirts and greeting cards, apparently referencing her favorite number and her birth date. Sphere didn’t like how she was using the phrase so it sued. Swift countersued, alleging that Blue Sphere was harassing her throughout the lawsuit. One allegation Swift made is that Blue Sphere served a discovery request asking for any promotional photographs or videos that show Swift’s partially visible breasts or bottom. Blue Sphere claimed that the question was relevant to prove what Swift’s target audience was. The settlement is confidential, but we can only imagine how much Sphere got paid.
So, haters are gonna hate, hate, hate on Taylor Swift. Players are also gonna play, play, play. But in more uplifting news, Swift’s lawyers have filed more than fifteen (15) trademark applications for THIS SICK BEAT used in association with a wide variety of entertainment and merchandise items. These items range from toys to hair accessories to home décor to soaps to potpourri and the obvious clothing. Unsurprisingly, this isn’t the first time her attorneys have filed a multitude of trademarks applications – Swift owns multiple registrations for T.S., SWIFT, TAYLOR SWIFT, THE 1989 WORLD TOUR, and others.
On closer examination, we learned that there are more than fifteen applications because each application was filed based on its individual class of good or service, even though the trademark is the same for each class of good and service. From a prosecution standpoint, this is a savvy thing to do. Doing so will allow each trademark application to proceed on its own merits, rather than having one application depend on the registrability of all sixteen goods or services. The government fee is the same, but a prudent trademark attorney will give you this option even though it may take the attorney a little more time to prepare, file, monitor and prosecute them. We have learned from experience it is almost always better to separate out trademark applications into separate applications for each class of goods or services rather than filing one multi-class application.
Additionally, each of Swift’s trademark application was filed on what is known as a Section 1(B) basis. This means that the application is filed on an intent to use, which does not require actual use of the trademark on the goods or services applied for at the time of filing. As long as Swift had the bona fide intent to use the mark on the goods and services listed at the time she filed the applications, she can file as many applications as she would like.
So what’s the moral of the story? It’s not just engineers and movie studios and computer companies that need to be concerned about intellectual property, even world-famous 25 year old music mini-moguls can find themselves all shook up when it comes to protecting their brands, their songs and their identity. We can only hope that she love, love, loves her lawyers!
(Many thanks to Rexford Brabson, Esq. for working up this blog entry; this is 90% his good work!!!).