Being one of the best earning pop stars has many upsides but being a lawsuit target is certainly not one of them. Taylor Swift, who is well known in the industry from being extremely protective of her brand, has now been sued by Jesse Braham (stage name: Jesse Graham) over the lyrics to “Shake It Off”. The R&B star claims that its chorus: "Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate " was taken from his song "haters gonna hate, players gonna play." What's more, Braham claims that if he “did not write the song Haters Gone Hate, there would not be a song called Shake It Off.” Given that “Shake It Off” won Favorite Song at the 2015 People’s Choice Awards and received 2 Grammy Awards nominations, the stakes are rather high.
Whose side is the law on? What can be copyrighted?
There are already dozens of articles with professional comments stating that the Braham’s lawsuit has no merits. Copyright
arises automatically upon artistic work creation like a poem, book, film, music, picture, software or lyrics of a song. However, in order for any work to be copyrighted, it must exhibit a degree of labor, skill or judgement. Given that the phrases in question are quite common in every day language, it is highly unlikely that the case will hold up.
Alternatives to copyright
There is no copyright in a name, title, slogan or phrase per se. However, they all can be registered as trade marks so the situation would have gone 180 degrees if Braham had done that. There are certain criteria that have to be met to register a trademark:
- A mark needs to be new which means that not only must it not be already registered as a trade mark in any other country but also be used as an unregistered trade mark. Even if registration of such a mark was successful, the previous user would have a right to seek invalidation of the mark.
- A mark cannot be descriptive for goods & services it is submitted for, e.g. “Apple” is a perfect mark for computers and electronics but it would be seen as descriptive if protection was sought for a grocery store.
- A mark needs to be distinctive so it has to allow a potential customer to indicate origins of goods & services offered under that brand.
Given the above, Taylor Swift and her team made a brilliant move last year. They have filed more than 30 trade mark applications in her name with the US Patent and Trademark Office for a wide range of goods & services relating to entertainment services, toys, hair accessories, cosmetics, clothing and others. The protection is sought for the most catchy phrases from Taylor’s 1989 World Tour album including: “This sick beat”, “Party like it’s 1989”, “Swiftstakes” and more. None of them has been registered yet but once they are, they will certainly serve a bigger purpose: to create another stream of licensing revenue.
IP strategy for creative industries
I followed actions of Taylor Swift’s lawyers and advisors for some time now. Not only with curiosity, but almost admiration. Her team has never been afraid to pursue legal actions (see: Etsy case) or make unpopular decisions. Her fans were not particularly happy with the decision to pull Taylor’s music from Spotify but it is hard to argue that streaming became a serious issue. It is significantly less lucrative from purchasing music so such a shift in creative industries has forced artists to seek alternative ways to protect and monetize on intellectual property. Taylor Swift and her team are not the only ones to realize this need but they are certainly working very hard to take the lead and become a flagship example of a successful and diverse intellectual property strategy.
Returning to Braham’s legal action, even if he doesn’t see a dime from the $42 millions he is seeking as compensation, he already got far more than that: priceless publicity.