What Do Musicians Need to Know About Trademarks?

By Josh Gerben, Esq.

As you may have heard recently, trademark attorneys for Taylor Swift have filed for trademark protection for a number of lyrics and phrases taken from her songs. These trademark applications are still working their way through the USPTO approval protocol, so it remains to be seen whether the marks will be approved.  That being said, the need and desire for musicians to protect their intellectual property is nothing new, and, it’s worth examining why Swift and her legal team are seeking trademark rights for these phrases, and exactly what protections she’ll be entitled to.

Trademarks for lyrics, such as those applied for by Taylor Swift, apply to goods and services – not to the music itself

Creative works – in this case, songs – are protected by copyright. These trademark applications are not intended to prevent other musicians (or other artists) from using lyrics as part of another creative work (it’s important to note that these protections are, however, enforced by the copyrights that Swift holds). The protections that Taylor Swift and musicians like her who file for trademarks seek involve products or services – for instance, t-shirts or other apparel. In Swift’s case, her latest set of applications include products as diverse as lifestyle goods like bath soaps, in addition to more conventional items like clothing.

Trademarks identify the musician as the source of the product or service

The key component to remember with trademarks is that they are intended to make clear the identifying factors as to the source of a product or service. The rationale underlying these Taylor Swift trademark applications is that her core audience base would be interested in purchasing lifestyle, fashion, and beauty products – and more – that are associated with Taylor Swift (by virtue of their branding with Swift’s lyrics and phrases), and that trademark protection is necessary to ensure that other companies don’t take advantage of these identifying factors to confuse the buying public into thinking they are purchasing a “Swift-approved” product when they are not.

Trademarks for lyrics and song titles still need to adhere to USPTO standards

The United States Patent & Trademark Office considers trademarks on the basis of their strength, which is a quality closely related to how distinctive a mark is. The strongest marks are “fanciful” or completely made up words or phrases. The application of strength is a bit different for lyrics than for more conventional company or product names, but one thing remains the same: generic words or phrases cannot be trademarked. In other words, a musician cannot simply trademark a generic, commonly used, merely descriptive word or phrase by virtue of using it in a song. The lyric in question needs to be a distinct, original combination of words, and it must also be able to be proven as closely related or identified with the singer.

Trademarks can protect the rights of musicians to profit from their songs and lyrics

Bootleg or counterfeit goods are a common pitfall in the worlds of art and music. The ubiquitous and accessible nature of so much popular music means that other companies and individuals are perpetually tempted to try and cash in on the popularity of those works, even if they aren’t entitled to. Some individuals may not even know that they are infringing on a trademark by creating merchandise featuring someone else’s song lyrics – they may not understand trademark protections and may legitimately believe that they are entitled to do so. Intentional or not, the sale of these goods can cut into the profits that musicians are entitled to from the work they created. A registered trademark serves as a proven, public record that a musician or songwriter is legally entitled to the rights to their lyric or phrase, and gives the trademark owner legal leverage to put a stop to illicit sale of goods that may appear to be identified as originating from them, but actually aren’t. If a trademark owner can prove financial loss from these other sales, they may also be entitled to recover damages – but only if they have registered their trademark.

Registering a trademark now can prevent problems later

This isn’t the first time Taylor Swift has dealt with trademark issues – she was on the other side, running into accusations of infringement in 2014. A major benefit of trademark registration is that it safeguards you against infringing on an existing mark. This is because a trademark application process begins with thorough research into existing marks, in order to prevent just such a situation. Detailed research also gives your application a much better chance of approval by the USPTO, and a well-researched, unique trademark will be subject to much broader protections. A successfully registered mark means that the USPTO agrees with you as to the unique nature of your mark, and gives you a better defense should someone accuse you of infringing upon them. Registering a trademark as soon as you intend to use it to sell a product or service in commerce also protects you against any other parties that may come along later and attempt to infringe upon you – their earlier your mark is registered, the better your chances of proving priority of usage.

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.