Because of the value of even
the simplest phrase, celebrities today are utilizing copyright and trademark
law to protect their intellectual rights in instances rarely before noticed. It
is Copyright and Trademark Law which requires their lawyers to send cease and
desist letters to unsuspecting entrepreneurs. A balance needs to be restored so
celebrities can proceed against large scale pirates even if they don’t
aggressively seek to protect their intellectual property rights in every case.
Recently Publicized Trademark
and Copyright Actions by Attorneys for Celebrities
Individuals and small
businesses have recently been surprised to receive cease and desist letters
from entertainers like Taylor Swift and Katy Perry for everything from
TaylorSwift song lyrics on a coffee cup to a 3D print of the left shark in Katy
Perry’s Super Bowl performance. So what’s up with that?
It’s been said that
entertainers are now blurring the lines between copyright, trademark and patent
law simply to make more money or to prevent others from making money off of
them. However, there actually is precedent for making claims that a musician’s
lyrics are protected under trademark law and that other images created by a
performer and likewise associated with that entertainer are protected under
copyright law.
Trademark Law
The cease and desist letter
sent by Taylor Swift’s attorneys to prevent her lyrics from being printed on
coffee cups sold to the public is an example of how entertainers today are
seeking to protect their work from being infringed by others under trademark
law.
It would be difficult today
for any lyricist or musician to claim that they discovered, invented or created
the grouping of any few words in a song title or the song’s lyrics for the very
first time and that no one ever before them had come along to do so. Although
at some point, someone must have said each phrase in any language for the very
first time, it’s doubtful they ever became so well known for having used the
phrase that others would immediately associate the phrase with that person.
Today, while the lyrics of a
songwriter would be a valid work that could be copyrighted so as to entitle the
musician to bring suit for copyright infringement against anyone using them in
a copyrightable work themselves, with the exception of the fair use doctrine
(which is an entire subject on its own) for slight uses, the average person on
the street would not expect that the lyrics could be trademarked so as to
prevent the use of even a one-line lyric on a coffee cup. But they can. They
can be trademarked as well as copyrighted. So what is going on here?
The theory behind an assertion
that lyrics or a slogan, or a phrase can be trademarked is that the lyrics have
become so distinctly associated with the entertainer themself or their song in
the case of lyrics, that they have acquired secondary meaning, thus allowing
the performer the right to protect the phrase in any type of commerce, such as
on coffee cups or other goods.
Is it really worth it to trademark
a phrase that you’re associated with? Consider the trademarked phrase, “Let’s
Get Ready to Rumble.” It’s been reported that this one simple phrase has
generated $400 million to it’s owner, Michael Buffer.
Is such a legal assertion
going to hold water for the local street performer or even an emerging artist
on a singing competition on television. In nearly every instance, the answer
would be no. But for someone of Taylor Swift’s stature, or Katy Perry’s or the
Beatles? Yes.
But why should it be necessary
for such artists who are most assuredly making more money than we can imagine
need to prevent a small entrepreneur from making a small amount of money from
coffee cups with a songwriter’s lyrics on them? Because trademark law in the
U.S. requires them to do just that if they want to protect their works.
Trademark law require a quick
response from the owner of a work in which they assert ownership to prevent the
unauthorized use of their work. This is normally achieved by use of a “cease
and desist” letter to the alleged infringer of their work. It’s not a lawsuit,
but it’s a none-too-polite way of warning the alleged infringer that if they
don’t stop using the person’s work in commerce, a lawsuit will follow, which
can be far more expensive to defend in most cases, with the risk of a judgement
for damages, than stopping what it is they’re doing that has brought the ire of
the work’s owner, in this case the lyricist or performer.
The typical cease and desist
letter, whether it’s used to stop an alleged trademark infringement or an
alleged copyright infringement, warns the alleged infringer that their
continued use or sale of the alleged infringing products may subject them to a
judgement for actual damages, statutory damages, and punitive damages as well
as immediate and permanent injunctive relief if they are found to have
infringed the owner’s copyright or trademark. What such a letter also fails to
mention, is that the attorney fees and costs in defending such a lawsuit may be
so expensive as to even force them into bankruptcy.
Even if the claim that’s made
by the attorneys for the artist in a cease and desist letter is bogus, specious
at best, in most cases it simply isn’t worth it for the individual or a small
business to wage the fight against a deep-pocketed performer just to win a
small victory that obtains only the right to sell an item rather than the
damages the performer could win for the infringement of their work.
Copyright Law
The cease and desist letter
sent by Katy Perry’s lawyers to the owner of an online store selling 3D printed
replicas of the left shark in Katy Perry’s Super Bowl performance was based on
an assertion by her lawyers that the sale of 3D print of the shark costume were
infringing Katy Perry’s rights under U.S. copyright law.
Perhaps to the surprise of
Katy Perry’s lawyers, in this case, they received a response from an NYU law
professor representing the owner of the online store.
The law professor tweeted that
he felt the left shark was not copyrightable because it qualified as a “useful
article” which is not protected the same way as an artistic work. The law
professor also sent a letter in response to Katy Perry’s lawyers, questioning
whether the singer’s lawyers had over-asserted the strength of their client’s
rights.
In his letter, the professor
wondered what
Katy Perry could possibly have to gain from their declared war on
the left shark internet meme. He asked why the lawyers for Katy Perry could
feel that the costume of a shark is copyrightable in view of the fact, he
stated, that the U.S. Copyright Office has made it clear that costumes are not.
It should be noted however, that another law professor has also weighed in on
the subject stating that an animal costume can be copyrighted, so long as it is
not generic.
Regardless, the law professor
representing the online store owner made it clear that his client just wanted
to go back to his business and would be grateful if Katy Perry’s lawyers would
just back off. As the law professor said, going ahead with a dubious copyright
claim would not benefit Katy Perry. He also questioned whether the NFL rather
than Katy Perry had ownership of any copyright interest in the costume.
But indeed, if Katy Perry did design
the costume or had a designer transfer their copyright interest to her, and if
she felt she might use it in future shows and possibly even sell replicas
herself at concerts, even if the NFL had control over the content of the Super
Bowl halftime show, this is what copyright law also requires of anyone owning a
copyright - a quick assertion of their rights upon learning of any infringement
of them.
To a performer in today’s
spotlight across all mediums of the universe which can be very bright indeed,
the performer’s intellectual property is their most valuable asset. In 1985,
Michael Jackson bought the publishing rights to most of the Beatles songs for a
mere $47.5 million. Today this amount looks ridiculously small, and in fact it
was even then. The purchase of the Beatles catalogue meant that Jackson was
free to license any song previously owned by the former music publishing arm of
The Beatles to any brand he chose.
Jackson was later able to sell
his rights to Sony for $95 million and still acquire half ownership in Sony/ATV
Publishing as well, a company which today is worth billions. (ATV had
previously purchased the Beatles catalogue from Northern Songs, the Beatles
publishing arm.) Due to a notoriously terrible contract John Lennon and Paul McCartney
signed at the start of their career, Northern Songs owned the publishing rights
to over 250 Beatles songs, including all of their hits at height of
Beatlemania.
The online store owner
attempting to sell Katy Perry’s shark costume perhaps summed up the perspective
of the small entrepreneur who receives cease and desist letters today with a
few choice words. He said it appeared to be easier to deal with world leaders
like Kim Jong Un or Chris Christie and that he would go back to making pieces
about them and other world leaders (although we’re not sure Chris Christie
would qualify as such). His final thought on the subject was more astute - “All
this lawyer crap is very stressful.”
Dealing with lawyers
preventing a small business person from making a little money can indeed be
very stressful. But this is what trademark and copyright law requires of the
attorney who has been tasked with protecting every possible intellectual
property asset of their client. The lawyer may not like putting the strong arm on
a business person just trying to make a living, but for the business person who
now has to give up a line of products he or she may have invested some money in
producing, and who may have done so without thinking of the consequences when
they should have known better, there is considerably more stress felt upon
receipt of a lawyer’s cease and desist letter.
While the seller of the coffee
cups with Taylor Swift lyrics printed on them and the maker of the 3D prints of
the left shark in Katy Perry’s Super Bowl performance may not have anticipated
they were infringing anyone’s copyright or trademark interest, neither should
Taylor Swift nor Katy Perry be criticized when trademark law and copyright law
requires them to have their lawyers do exactly what they did, namely to
aggressively protect their clients’ intellectual property rights.
Is it necessary for a lyricist
or songwriter to prevent their lyrics from being sold on any type of item?
Under trademark law as it exists today, probably so, if the lyrics are so
distinctly associated with the songwriter and performer that they have acquired
secondary meaning under the law.
Is it necessary for a
performer to prevent others from selling the same costume they create or have
someone else create for them to use in a performance? Under copyright law,
probably so as well, if the artist wants to retain the exclusive right to use
the costume in future performances thus acquiring an even stronger acquired
secondary meaning that will allow that artist to copyright the costume and
later sell it themselves as a Halloween costume.
If Jimmy Buffet had a
Parrothead costume, which for all we know he may have, and he used it in his
performances, no one would question his right to have it copyrighted. The name,
Parrothead, is already trademarked by Jimmy Buffet and his company,
Margaritaville Enterprises, for various products.
Today, however, the brand of a
performing artist, sports figure or model is so much bigger than just their
music, their achievements on the field or their photos, it’s everything else
that allows them to market themselves across all the different platforms
available to them today. And that is why too a celebrity must also be careful
not to appear to be petty at the expense of the little person.
Unfortunately for the
celebrity, in today’s world when their every action and those of their
attorneys are publicized, even when they do exactly what is required of them by
trademark and copyright law, their actions can appear to be unjustified.
While it may be important to
protect one’s intellectual property, because of he importance of their brand’s
image, a celebrity would not be wise to sic their lawyers on an autistic little
girl’s lemonade stand selling hand drawings of their celebrity client to help
pay for her mother’s cancer treatment. And let’s be clear, we know of no such
instance having occurred to date and we doubt any celebrity would ever
knowingly have their attorneys take such an action.
We should also make it clear
that copyright and trademark laws are essential and are crucial to protecting
the rights of the creative artist who develops a screenplay or produces a film,
writes music or a book or creates a line of clothing or jewelry or anything
else due to their talent as artists and creative people against those who would
sell pirated copies of their films, produce knock offs of women’s handbags or designs
of clothing, or of an artist’s paintings. Our firm, just like any other firm
who practices copyright and trademark law will proceed against such a copyright
or trademark infringer without a second thought.
But there must obviously be
some balance between protecting one’s intellectual property while allowing the
little person to sell a product that has only a tangential relationship with a
celebrity. What is thus needed is a change in the law that allows both parties
to coexist peaceably and which does not, by their coexistence, cause the
celebrity to forfeit their intellectual property rights if they choose to allow
the little girl at her lemonade stand to sell her drawings without receiving a
letter from an attorney.
Perhaps when the copyright and
trademark laws are rewritten, that balance and peace between the celebrity and
the little guy or girl will be restored while still allowing the creative
artist’s lawyers to proceed with all the resources at their disposal against
pirates who would seek to profit in large scale off the back of the creative
artist.
http://www.hg.org/article.asp?id=34586