Stories filed under: "taylor swift"
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'Blue Line' Apparently Doesn't Apply To Bad Cops Abusing Copyright Law To Prevent Citizens From Uploading Recordings
from the try-not-to-be-such-an-asshole,-asshole dept
Thu, Aug 19th 2021 11:07am - Tim Cushing
Last month, Sergeant David Shelby of the Alameda County (CA) Sheriff's Office inducted himself into the Hall O' Internet Infamy by openly admitting to people filming him that he was playing copyrighted music on his phone in hopes of terminating live streams, recordings, and police accountability activists' accounts.
When confronted by activists, Sgt. Shelby pulled up a Taylor Swift track, hoping the fervent protector of intellectual property would keep the recording from being successfully uploaded. His effort failed. The interaction made its way to YouTube and to the internet beyond. Sgt. Shelby showed his whole ass and the world wide web was there to witness it.
This is a new tactic being deployed by cops around the nation. It's not widespread, but it's happened more than once, which implies cops are at least cognizant of one aspect of the law. But, to date, it hasn't worked. The recordings meant to be terminated by copyright-protecting AI have been successfully published to the web. The inability to use copyright as a censor has exposed some cops as the bad faith operators they are — a list that includes Sgt. Shelby.
His coworkers aren't happy. Emails obtained by Motherboard (and covered by Samantha Cole) show Shelby's behind-the-blue-line compatriots thought this was an especially dumb and disingenuous move by this superior-in-name-only.
"WHYYYYYY?," Miguel Campos, another Alameda County officer, wrote in an email to two colleagues that includes a link to a news story about Shelby's impromptu Taylor Swift session.
Another officer replied that she'd sent lieutenants a separate email, and added, "Protected rights are a thing! We must never let our protection of laws override those protections. Also, if there is any uncertainty about what should be done….ask!"
Not all press is good press. That's something cops should know by now. Even if local news outfits are unwilling to question cop narratives, internet denizens are still willing to ask the hard questions. Anything that shows cops are trying to abuse anything in their control to prevent accountability will be noticed and amplified. Sgt. Shelby's co-workers are more aware than he is. And their complaints about his actions make it clear no one's happy he's drawn this much heat to the department and made them unwillingly complicit in his First Amendment violations.
The good news is all of the above. Plus this: the Alameda County Sheriff's Department has issued a new policy two weeks after this infamous incident — one that forbids employees from being the asshat Sgt. Shelby was.
"Agency members shall not, purposefully and knowingly, use or broadcast any copyrighted body of work in a manner that will adversely impact the level of professionalism, performance, conduct and productivity that is expected of a peace officer or professional staff member," and "Copyrighted work shall not be used in a manner as to limit the public's ability to exercise their First Amendment rights as set fourth [sic] in the United States Constitution."
Sure, cops violate policy all the time, along with the laws they're supposed to be enforcing. But this bullshit actually turned into a specific ban on playing copyright gotcha with the people who pay their paychecks. That is good news, even if it's inevitable someone will violate the policy and suffer nothing more than a paid vacation.
(Qualified) good news! But let's just briefly address this assertion made in this article at Motherboard:
People have a First Amendment right to film the police.
Not exactly true. Several circuits have affirmed or established this right. But we're still waiting on a Supreme Court declaration that this action is not only lawful, but protected. All odds point to SCOTUS agreeing this much is true. But, at this point, it's not actually a "right." Unfortunately, YMMV depending on your jurisdiction. Sgt. Shelby's actions were complete bullshit. But whether or not it violated a right remains to be seen. And, as long as the Supreme Court leaves this question unanswered, people will be arrested for filming cops. And cops will escape lawsuits for violating rights that haven't been "clearly established" by the top court in the land.
Filed Under: 1st amendment, alameda, copyright, david shelby, free speech, music, police, recording police, taylor swift
Poof! Taylor Swift, Evermore Theme Park Lawsuits Dropped With No Money Exchanged
from the nevermore dept
Fri, Mar 26th 2021 07:39pm - Timothy Geigner
Well, that didn't last long. You will recall that in early February a Utah theme park called Evermore filed a very stupid trademark lawsuit against Taylor Swift. At supposed issue was Swift's new album, Evermore, and the associated merchandise for it. The theme park claimed that Swift's album was driving their search engine rankings down, that people would be confused thinking she was somehow connected to the theme park, and that the park also produces some music, putting them in the same competitive marketplace as the singer. Swift's team countersued, alleging that some of the park's actors would sing and perform copyrighted music, including Swift's. It was all, frankly, very dumb.
But merely a month later, the dumbness is gone. Rolling Stone reports that both sides have dropped their lawsuits and reached an agreement, one which does not carry any monetary exchange.
A lawsuit and countersuit between Taylor Swift and Utah fantasy theme park Evermore have both been resolved with the involved parties dropping their respective suits, Rolling Stone has learned.
"As a resolution of both lawsuits, the parties will drop and dismiss their respective suits without monetary settlement," a spokesperson for Taylor Swift said in a statement to Rolling Stone.
A fitting end, since these suits never should have been filed to begin with. The claims that Evermore made against Swift were ridiculous on their own. But to go after the singer in this manner while the park itself was potentially infringing upon her copyrighted music is hubris in the extreme. The park, which reportedly hasn't been profitable since it was created, surely could have found a better use for its cash reserves than paying a legal team for this kind of litigious adventurism.
On top of that, surely the park is now firmly on Swift's and TAS Management's radar, the latter being her rights management group.
Filed Under: copyright, evermore, taylor swift, trademark
Companies: evermore
Taylor Swift, Evermore Theme Park Dispute Escalates As Swift's Team Countersues
from the swift-response dept
Mon, Mar 1st 2021 08:02pm - Timothy Geigner
In early February, we discussed an extremely dumb lawsuit brought by a theme park in Utah called Evermore against Taylor Swift, who recently released an album called Evermore. The whole thing is buckets of stupid, with the Evermore theme park claiming that because it released a couple of songs on Apple Music, this somehow puts them in the same marketplace as Taylor Swift. Then there were complaints that Swift's album pushed search results down for the theme park, which doesn't trademark infringement make.
Swift's response dismantled the claims the theme park made, but when on to note that Evermore theme park had actually gone on social media and responded to messages about Swift's album trying to associate the park with the album. In other words, the only potential for public confusion appears to have been generated by the theme park itself.
And now this is going to escalate further as Swift's management company has countersued the park for the unauthorized use of Swift's music.
Now, her company TAS Rights Management has countersued, alleging that the park played Swift songs on its grounds "without authorisation or license agreement". They allege that the park "blatantly ignored the numerous notices from [US performance rights organisation] BMI and opted instead to continue to benefit from the free and unauthorised public performance" of three Swift songs.
Specifically, TAS alleges that one of the attractions of the park is a section where several park actors perform and sing copyrighted music, including a couple of Swift songs. From the filing:
At a section of Evermore Park known as "the Burrows," two actors regularly and routinely perform copyrighted songs, including the Works at issue in this action, to large crowds of patrons at Evermore Park. These unlawful musical performances are marketed as a central attraction of Evermore Park. For instance, Evermore Park's website advertises that visitors can "[c]reate fanciful music" with Park actors and describes one of the Park's main activities as "Musical Character Performances."
Also noted in the filing, and perhaps most damning, is that the Evermore park reached out to BMI once this lawsuit became imminent and attempted to get a retroactive license to cover these past performances of copyrighted works. Combined with exhibits brought by Swift's team detailing the several times that BMI has informed Evermore that its use of copyrighted songs was infringing, all of which were ignored by the park, the suit makes the case that the park's infringement was willful. Frankly, it's hard to formulate much of an argument against that assertion.
Which makes it useful to reiterate that all of this appears to be a result of Evermore theme park first filing a ridiculous trademark lawsuit of its own. In other words, they decided to poke the hornet's nest and are now getting stung.
Filed Under: copyright, evermore, licensing, taylor swift, theme park, trademark
Companies: evermore, tas rights management
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Utah Theme Park Sues Taylor Swift Over Album Title After Exploiting It
from the wheeee dept
Thu, Feb 4th 2021 07:53pm - Timothy Geigner
It really is kind of crazy just how often Taylor Swift shows up in Techdirt's pages. One reason for this is that she seems to seesaw in the news between being the victim of and perpetrator of ridiculous intellectual property disputes. The whole "Shake It Off" thing was really silly, for instance, but so were Swift's attacks on fans and journalists over spurious trademark concerns. And, so, she doesn't neatly fit as a hero or villain. Instead, every time her name pops up in intellectual property news, the immediate question becomes, "Which side of it is she on this time?"
Today, that answer is as the victim. See, Swift recently released her album, Evermore, and applied for trademarks for the term, too. Meanwhile, the owner of a Utah theme park that goes by the same name has decided to file a trademark lawsuit against her for using the term, claiming that the album and associated merchandise are creating real confusion in the marketplace.
Federal court documents filed in the Utah District Court show Ken Bretschneider, the chief executive officer of Evermore Park in Pleasant Grove, Utah, has filed a lawsuit against Taylor Swift over her latest album, 'Evermore.'
Documents filed on Tuesday show 12 exhibits of evidence supporting Bretschneider's case, including Google search results for Evermore, items of clothing with branding, and two different letters from Swift's counsel.
The suit makes some of the claims you would expect. And then a couple you wouldn't. It states that the company has poured millions into the branding of Evermore Park, including the purchase of domain names, advertising, etc. $37 million dollars, to be precise. Point of note: Bretschneider himself indicates that the park has had 140k guests since its genesis in 2018. That's roughly $265 in just branding costs per guest…ever. None of that takes into account operational costs for the park, HR, legal, etc. Unless the park charges attendees hundreds of dollars per entry, it's tough to see how this math makes any sense, but I digress.
Because the filing goes on to note that the park commissioned two original songs that it sells on Apple Music under the Evermore trademark it has and that this somehow means it's in the same general marketplace as Taylor Swift. Also, the filing complains that before Swift released her album, the park consisted of the majority of Google search results for "Evermore". Now, not so much.
Is any of this trademark infringement? Of course not! Swift's response to the suit is both good on the merits and quite thorough. It points out that the claims are baseless due to the park and Swift not being remotely in the same marketplace generally, that Swift's use of "Evermore" is actually "Taylor Swift Evermore Album" which is different as a mark, and that the claims of confusion are nonsense… but with a twist!
Second, you have not identified any evidence of actual confusion, likely because there is none. You make the conclusory statement that "Evermore's web traffic and digital marketing have been negatively impacted since your adoption of the Evermore trademark" and claim that "[d]uring the week of December 6-12, 2020, [your client's] website traffic experienced a dramatic departure from typical levels." As a preliminary matter, a change in website traffic does not equate to trademark confusion. Furthermore, even if it did, any dramatic departure from typical levels that occurred from December 6 – December 9 are in no way attributable to the Swift Parties because Ms. Swift's album name was not announced until December 10. Your attempt to fully impute an alleged decline in email traffic to Ms. Swift's new album is similarly misguided given the reality of the industry-wide impacts COVID-19 has had on theme parks,4 particularly in winter months as temperatures decline and as case counts are soaring across the country. Lastly, and perhaps most importantly, your client's social media posts belie this claim as they have intentionally traded off and taken advantage of this alleged attention in a transparent attempt to try to create an association between your client and ours.
Yeah, that's right, the very confusion the park is complaining of is confusion the park itself attempted to foster for publicity.
Bottom line: this is a lawsuit almost certain to go nowhere fast. Claims of confusion are silly, the markets aren't remotely the same, and the marks themselves are different. So, Swift is the victim in this chapter. We'll have to see where she lands next time.
Filed Under: evermore, ken bretschneider, taylor swift, trademark
Companies: evermore park
Taylor Swift Changes Artwork For New Album, Merch After Online Retailer Complains Of Similarities
from the swiftly dept
Tue, Aug 4th 2020 07:36pm - Timothy Geigner
If ever there were an artist who seems to straddle the line of aggressive intellectual property enforcement, that artist must surely be Taylor Swift. While Swift has herself been subject to silly copyright lawsuits, she has also been quite aggressive and threatening on matters of intellectual property and defamation when it comes to attacking journalists and even her own fans over trademark rights. So, Taylor Swift is, among other things, both the perpetrator and the victim of expansive permission culture.
You would think someone this steeped in these concerns would be quite cautious about stepping on the rights of others. And, yet, it appears that some of the iconography for Swift's forthcoming album and merchandise was fairly callous about those rights for others.
Amira Rasool, founder of the online retailer The Folklore, accused the pop star last week of selling merchandise that ripped off the logo of her company, which sells apparel, accessories and other products by designers in Africa and the diaspora.
Rasool shared photos on Twitter and Instagram that showed cardigans and sweatshirts with the words "The Folklore Album" for sale on Swift's website.
This morning, it came to my attention that musician #TaylorSwift is selling merchandise to go along with her new album 'Folklore'. She is currently selling merchandise with the words "The Folklore" printed on them. Based on the similarities of the design, I believe the designer of the merch ripped off my company's logo. I am sharing my story to bring light to the trend of large companies/celebrities copying the work of small minority-owned business owners. I am not going to let this blatant theft go unchecked. Please tag @diet_prada and @thefashionlaw under the post and share this on Twitter and IGz #TheRealFolklore #TheFolklore Original logo designed by @cainecasket
A post shared by Amira Rasool (@amirarasool) on Jul 24, 2020 at 9:17am PDT
Are those logos confusingly similar? Given the shared brand name… yeah, probably! While not exactly the same, particularly given the font and style choices, the overall placement of the words in each logo is similar enough that I can see a valid trademark issue here.
Now, let's be super clear about a couple of things. First, Swift has changed the logo after Rasool's complaint. She also reached out to Rasool and commended her organization and appears to have made a contribution to it as well. Rasool herself has responded appreciatively and has said the matter is closed. A monster Taylor Swift is not.
But that isn't really the point. In many instances, this is how trademark infringement issues happen. I have seen nothing to suggest that Swift's team knew of Rasool's organization and blatantly ripped off her logo. Maybe they did, maybe they didn't. But it's not tough to picture how this could have happened relatively innocently. And that immediately brings to mind the following question: would Swift have offered the same grace to the targets of her own enforcement as did Rasool? Given how aggressive she's been in trying to trademark all the things and then going after her own fans as a result, it seems doubtful.
But maybe this is the learning opportunity she needs. I won't hold my breath.
Filed Under: confusion, likelihood of confusion, taylor swift, the folklore, trademark
Companies: folklore
9th Circuit Revives Ridiculous 'Shake It Off' Copyright Lawsuit, Because The 9th Circuit Loves To Mess Up Copyright Law
from the playas-gonna-play dept
Fri, Nov 1st 2019 09:37am - Mike Masnick
Why is the 9th Circuit so horrendously bad at copyright law? This question comes up way too often. Last year we wrote about a very good and (and at the time, we thought) very easy and obvious district court dismissal of a lawsuit against Taylor Swift. The issue was Taylor Swift's hit song "Shake It Off" which includes in the lyrics the lines "playas gonna play" and "haters gonna hate." She was sued by Sean Hall who had a song call "Playas Gon' Play" that has the lyrics "Playas, they gonna play / And haters, they gonna hate." The district court not only dismissed the case as ridiculous, but the judge threatened Section 11 sanctions on Hall's lawyers for bringing such a ridiculous case as it was beyond obvious that such short snippets (used slightly differently) weren't nearly enough to get a copyright alone — and since that's the only similarity, the case got tossed.
In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.
But, as first noted by the Hollywood Reporter, the 9th Circuit has revived the case and sent it back to the lower court. The incredibly short (and non-precedential) order just says that determining whether or not something is covered by copyright is a matter of fact, not law. This matters in a big way, procedurially, though I apologize for my very layman's explanation of civil procedure. A motion to dismiss is generally the quickest and easiest way to get a case dismissed, though it's limited in what it can be used for. A typical "12(b)6" motion to dismiss is used at the earliest part in a lawsuit, and basically says that "even if everything the plaintiff says is true, it doesn't state a legitimate claim under the law" and thus should be dismissed. The judge is then supposed to assume that everything in the complaint is true (for this stage of things) and determine if there's a valid claim (it's much later in the procedure, if it gets that far, that defendants can start poking holes in the claims).
One of the rules used by judges is that they can only rule on matters of law, and whether or not there's an actual claim is seen as a matter of law. Matters of fact, on the other hand, are seen as things that a jury should decide (much, much later in the process). Again, this is a very, very, very basic civil procedure lesson and there's lots of nuance and conditions and real lawyers can feel free to complain about this description, but that's the quick overview.
What's bizarre about this 9th Circuit remand to the district court is that it suggests district court judges can never say "but that's not even covered by copyright" at the motion to dismiss stage:
Originality, as we have long recognized, is normally a question of fact… . Indeed, as Justice Holmes long ago cautioned:
It would be a dangerous undertaking for persons trained only to
the law to constitute themselves final judges of the worth of
pictorial illustrations, outside of the narrowest and most obvious
limits. At the one extreme, some works of genius would be sure
to miss appreciation. Their very novelty would make them
repulsive until the public had learned the new language in which
their author spoke. . . . At the other end, copyright would be
denied to pictures which appealed to a public less educated than
the judge. . . . [A]nd the taste of any public is not to be treated
with contempt.
Justice Holmes' century-old warning remains valid. By concluding that,
"for such short phrases to be protected under the Copyright Act, they must be more
creative than the lyrics at issues here," the district court constituted itself as the
final judge of the worth of an expressive work. Because the absence of originality
is not established either on the face of the complaint or through the judicially
noticed matters, we reverse the district court's dismissal under Rule 12(b)(6).1
But… that seems to totally misunderstand Justice Holmes' point. Justice Holmes was saying that judges shouldn't be in the business of judging the artistic merit of a work. But that's a wholly different question from whether or not a work even qualifies for copyright in the first place. And it's long established that short words or phrases are not covered by copyright. Indeed, the Copyright Office has made it clear for ages that you can't copyright short phrases:
Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain
an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words
As such, it seems pretty freaking obvious that this is a question of law, not fact. "Is this copyrightable?" is right smack in the middle of a question of law. And yet, the 9th Circuit seems to think not — meaning that the 9th Circuit may face a bunch of really dumb copyright lawsuits on things clearly not covered by copyright, because the 9th Circuit seems to think even when there's obviously no legitimate copyright, it has to go to a jury to decide that "fact."
That seems really bad — and means that bogus copyright lawsuits cannot be (I'm so, so sorry) "shaken off" as easily as they should be.
Filed Under: 9th circuit, copyright, haters gonna hate, issues of fact, issues of law, playas gonna play, sean hall, shake it off, short phrases, taylor swift
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Court Shakes Off Dumb Copyright Lawsuit Against Taylor Swift
from the lawyers-gonna-lawyer,-judges-gonna-judge dept
Thu, Feb 15th 2018 01:34pm - Mike Masnick
For an industry that talks up how important copyright law is, it's fairly astounding how frequently there are really dumb lawsuits filed between musicians. Lately, because of the ridiculous "Blurred Lines" verdict, there have been tons of lawsuits filed over "sounds like" songs, or even "inspired by" songs, as lawyers (and some musicians) see a chance to cash in on the actual success of others. But we've also seen a bunch of really dumb lawsuits filed over the use of similar phrases. A few years ago there was the case where Rick Ross sued LMFAO because they had the line "Everyday I'm shufflin'" in a song that he claimed was infringing his "Everyday I'm hustlin'." The court was not impressed.
Last year a similar case was filed (which I'd meant to write about when it was filed, but a million other things got in the way), in which Sean Hall sued Taylor Swift claiming that her lyrics in "Shake it Off" were similar to a song he wrote called "Playas Gon' Play." The songs themselves were not similar, but both used lines about how "playas gonna play" and "haters gonna hate" (though not even exactly in the same way). Thankfully, once again, the court hearing the case is not at all impressed:
The allegedly infringed lyrics are short phrases that lack the modicum of originality and creativity required for copyright protection. Accordingly, if there was copying, it was only of unprotected elements of Playas Gon' Play.
This is pretty core, basic copyright 101 stuff. Copyright does not attach to short phrases that don't have any originality or creativity. Indeed, while the judge, Michael Fitzgerald, will allow Hall to try again with an amended complaint, he makes it clear that he sees little likelihood of success and hints strongly that trying again could lead to sanctions against the lawyer:
While the Court is extremely skeptical that Plaintiffs will – in a manner consistent with Rule 11 – be able to rehabilitate their copyright infringement claim in an amended complaint, out of an abundance of forbearance it will give Plaintiffs a single opportunity to try. Any future dismissal will be without leave to amend.
The mention of "Rule 11" is significant, because that's the rule that establishes how lawyers are expected to act in court, and allows for sanctioning of lawyers who don't follow it. Saying explicitly that the court doesn't see how Hall's lawyers can be "consistent with Rule 11" in any refiling is basically saying, "Not only do I not think you have a case, this case is so dumb that you lawyers may have to pay up for filing such a frivolous lawsuit."
And that doesn't even touch on the fact that with copyright cases, it's much easier to get legal fees paid for filing silly lawsuits. Even if Rule 11 isn't used against the lawyers, the court could still order Hall to pay Swift's legal fees for this silly case. Indeed, as the ruling points out in great detail, this is a very silly case.
As reflected in Defendants' RJN, and as Plaintiffs acknowledge, by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters. Although Plaintiffs recognize as much, they allege that they "originated the linguistic combination of playas/players playing along with hatas/haters hating…" …. Plaintiffs explain that the plethora of prior works that incorporated "the terms 'playa' and hater together all revolve about the concept of 'playa haters'" – a "playa" being "one who is successful at courting women," and a "playa hater" being "one who is notably jealous of the 'playas'" success." …. Plaintiffs explain that Playas Gon' Play "used the terms in the context of a third party, the narrator of a song who is neither a 'playa' nor a hater, stating that other people will do what they will and positively affirming that they won't let the judgment of others affect them."…
The concept of actors acting in accordance with their essential nature is not at all creative; it is banal. In the early 2000s, popular culture was adequately suffused with the concepts of players and haters to render the phrases "playas … gonna play" or "haters … gonna hate," standing on their own, no more creative than "runners gonna run," "drummers gonna drum," or "swimmers gonna swim." Plaintiffs therefore hinge their creativity argument, and their entire case, on the notion that the combination of "playas, they gonna play" and "haters, they gonna hate" is sufficiently creative to warrant copyright protection. …
"It is true, of course, that a combination of unprotectable elements may qualify for copyright protection… But it is not true that any combination of unprotectable elements is eligible for copyright protection… [A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship." Satava, 323 F.3d at 811 (internal citations omitted; emphasis in original).
Looking at this case from a combination-of-unprotected-elements perspective, Plaintiffs' combination of "playas, they gonna play" and "haters, they gonna hate" – two elements that would not have been subject to copyright protection on their own – is not entitled to protection. See id. at 812 ("The combination of unprotectable elements in Satava's sculpture falls short of this standard. The selection of clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection."); Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003) ("Lamps Plus's mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work as required by § 101 [of the Copyright Act]."). Two unprotectable elements that, given pop culture at the time, were inextricably intertwined with one another, is not enough.
And the court concludes, again, with a warning that refiling an amended complaint is risky, as the court has trouble seeing how there's any chance of success:
In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act. In light of the fact that the Court seemingly "has before it all that is necessary to make a comparison of the works in question," Peter F. Gaito Architecture, 602 F.3d at 65, the Court is inclined to grant the Motion without leave to amend. However, out of an abundance of caution, the Court will allow Plaintiffs one opportunity to amend, just in case there are more similarities between Playas Gon' Play and Shake it Off than Plaintiffs have alleged thus far (which Plaintiffs' counsel did not suggest at the hearing). If there are not, the Court discourages actual amendment. The more efficient course would be for Plaintiffs to consent to judgment being entered against them so that they may pursue an appeal if they believe that is appropriate.
Filed Under: copyright, hatas gonna hate, haters, playas, playas gonna play, sean hall, taylor swift
Taylor Swift Using Dubious Trademark Registrations To Shut Down Sales Of Fan-Made Goods
from the consolidating-power dept
Thu, Nov 9th 2017 10:45am - Tim Cushing
Oh, to be a lawyer retained by Taylor Swift™ — free of concerns about your client's financial health or the nuances of intellectual property law. When not pursuing bogus defamation claims or targeting clear fair use cases, you can always bring the power of Swift® to bear on the unofficial adoration of the probably-not-a-white-supremacist singer's fanbase.
Legal threat after legal threat sent following trademark filing after trademark filing in hopes of capturing 100% of all available SwiftDollars™. Why only collect royalties when you can submit individual lyrics from songs to the US Patent and Trademark Office to lock everyone else out of the Swift Merch Machine®?
Ron Coleman — who knows a thing or two about viable trademark registrations — cuts to the heart of Swift's now-trademark trademark bullying. Quoting a more respectful article by Billboard, Coleman sets the stage:
Earlier this month, Swift moved to trademark key phrases from her music: the title of her upcoming album Reputation, her latest single "Look What You Made Me Do" and one of the lines from said single, "The old Taylor can't come to the phone right now." Swift plans to use the phrases on a variety of licensed merchandise, from t-shirts to notebooks and guitar picks. "Look What You Made Me Do" is already emblazoned across t-shirts on Swift's online merch store, which has likely generated significant sales in conjunction with the singer's controversial Ticketmaster Verified Fan campaign that rewards merch and music buyers with a better shot at good tickets.
Etsy shop owners who pedal [sic] unofficial, Swift-inspired goods have been seeing a spike in cease and desist letters, according to BuzzFeed.
The latest trademark filings follow registrations for such lyrical inanities as "party like it's 1989" and "this sick beat" — the latter of which could have been "coined" by anyone countless times before Swift™ decided she should be the sole proprietor.
Ultimately… it's trademark bullying — the continuation of IP law by other means — from which the recipients of these baseless legal threats have no realistic recourse.
Is it utterly insane to suggest that if a celebrity (whether an athlete, "artist" or whatever they're famous for these days) coins or brings fame to a phrase, other people should not be able to profit from it without the celebrity getting some of the vigorish?
Yes, it's utterly insane. I won't give Congress credit for thinking this through, but the way it turns out neither the trademark regime nor the copyright regime protect clever wordplay, and they're not meant to. Why? Because not everything should be monetized.
Especially when it already is. Every time one of these fans sells something with a Taylor Swift "lyric" (and, really — puh-lease) on it, each use of that something is an advertisement for Taylor Swift.
There's your monetization, Taylor. Hope that helps you make the rent this month.
As Coleman points out, attempting to trademark lyrical phrases isn't unheard of, but it's also rarely guaranteed to result in a legitimate trademark. Swift maybe doesn't know this, but her lawyers do… or at least should. What her lawyers do know is someone side-gigging on Etsy isn't going to push back much when a threat letter claiming nothing more than a pending trademark registration shows up in their mailbox signed by a lawyer with a string of Roman numerals after his name on the letterhead of a high-powered law firm.
So, the abuse will continue and Swift™ will continue to lock fans out of being fans on their own terms. They're always welcome to add themselves to the Taylor Swift Official Revenue Stream®, which will allow Swift, Inc. to dictate the terms of the relationship as well as the markup on goods and services.
And so homage is forbidden; unofficial inspiration is punished; the brand is "managed"; the fan base is still, in the main, slavishly dedicated to buying Officially Licensed Garbage; the legal fees are earned; the world spins on with a bunch fewer Etsy shmattes devoted to the star's fabulous self; and all is well with the world.
That's not to say Swift has cornered the market on ridiculous IP litigation. Swift is also being sued for infringement for allegedly jacking one of the most unimaginative lyrical lines ever written.
The songwriters behind 3LW's "Playas Gon' Play" say Taylor Swift's "Shake It Off" infringes on their lyrics. The aughts girl group sang "Playas, they gonna play / And haters, they gonna hate" more than a decade before Swift declared "[T]he players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate."
Sean Hall and Nathan Butler co-authored the 2001 song and claim they popularized the now ubiquitous phrase.
Considering the tautological nature of the disputed phrase, it's unlikely Hall/Butler were the first to use this phrase, much less the only ones to ever think of describing the actions of players/haters as being, respectively, playing/hating. But lawyers gonna law, as they say [trademark registration pending]. And here we are, watching two artists dispute the origin of two banal takes on players/haters. Given the stupidity on display, we should be more than willing to hate both the players and the game.
Filed Under: fans, taylor swift, trademark
Taylor Swift's Legal Rep Tries To Kill Critical Blog Post With Bogus Defamation, Copyright Claims
from the flailing-badly dept
Tue, Nov 7th 2017 10:44am - Tim Cushing
Taylor Swift's legal representation is busy again. Really, her reps are never not busy, thanks to her desire to capture the entirety of the Taylor Swift market, but this particular legal threat — aimed at a blogger — oversteps its bounds egregiously.
PopFront editor Meghan Herning wrote a post detailing Swift's unofficial position as a white supremacist hero. While there's nothing in the post claiming Swift has directly encouraged this subset of her following, it did point out that she's remained curiously silent on race issues, as well as made use of Nazi-esque imagery in her videos.
Swift is not amused, apparently. William Briggs of Venable LLP sent threatening letter [PF] demanding the removal of the PopFront post. The letter claims the post is defamatory and filled with "malicious lies." More specifically, Swift apparently doesn't care for the following post content:
The story knowingly regurgitates, repeats, and attempts to expand on a malicious lie. Among other things, the story propagates such hideous falsehoods as: 1) "Taylor's lyrics play to [a] subtle, quiet white support of a racial hierarchy;" 2) that there are similarities between Ms. Swift and Adolf Hitler; 3) that the "lyrics [of "Look What You Made Me Do"] are the most explicit in speaking to white anger and affirming white supremacy;" and 4) that Ms. Swift's purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right movement.
The rest of the cease-and-desist is more of an angry letter to the editor. The legal firmness of Venable LLP's stance takes a backseat to general, non-litigious complaints about the post's assertions. Swift's attorney says his client has done plenty to combat racial inadequacy and is under no obligation to campaign for the Hillary Clintons of the world. Fair enough, but really not the sort of thing actionable legal claims can be built on.
Unfortunately for Swift and Venable LLP, the ACLU has stepped in to represent PopFront and Meghan Herning. It has answered with a letter [PDF] of its own that completely disassembles the stupid, sometimes disingenuous statements made by Swift's legal rep.
First, the blog's statement that "Taylor's lyrics seem to play to the same subtle, quiet white support of a racial hierarchy that benefits them," is protected opinion. As an initial matter, your letter misquotes the blog post by omitting the word "seem," a term signaling that what follows is an opinion. This omission suggests that you well understand that the actual post is stating an opinion, protected by the Constitution. If you are going to write a letter accusing a person of misrepresentation, you should avoid misrepresenting what she wrote.
The ACLU's letter points out Taylor Swift is a celebrity. The defamation bar is much higher for public figures, especially since the same fame that grants them money, power, and all the other nice things in life also makes them targets for criticism. Criticism isn't immediately synonymous with defamation, no matter how much Swift's lawyer would like it to be. And, again, the ACLU's letter makes this point while knocking the C&D for its attempt to put words into the blog post's author's mouth.
[Y]our letter asserts what the blog does not, "that Ms. Swift's purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right [sic] movement." It is not clear what your statement refers to, because there is nothing in the post that says this. The post does state that "there is no way to know for sure if Taylor is a Trump supporter or identifies with the white nationalist message, but her silence has not gone unnoticed." But this is a far cry from stating that she supports Trump or identifies with the alt-right. You are of course absolutely right that "Ms. Swift has no obligation to campaign for any particular candidate or broadcast her political views." But nor does she (or, probably more to the point, her lawyers) have the authority to tell other people the conclusions they can draw from her decision to keep silent.
Thus, however, "hideous" you consider these statements to be, none of them are actionable.
To top it all off, the legal threat came with a paragraph claiming the letter was protected IP and could not be reproduced or published without permission. This is not just rank bullshit but it's also incredibly stupid. There's almost no phrase more guaranteed to result in permissionless publication than this one:
This is a confidential legal notice and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of Copyright Act. You are not authorized to publish this letter in whole or in part absent our express written authorization.
The ACLU makes this point by publishing Venable LLP's letter along with the following paragraphs in its response:
First, the claim of confidentiality can only be described as odd, particularly coming from a lawyer; you cannot really expect that a person who receives a letter like this will feel any duty to keep this matter a little secret between the two of you. And it is not without irony that at one point you ask that your "letter stand as yet another unequivocal denouncement by Ms. Swift of white supremacy and the altright," but then purport to forbid anybody from making the letter public.
Second, you cannot use copyright law as a weapon to suppress your letter, because reproduction of it here is fair use under 17 U.S.C. § 107. Attaching the letter to this one transforms it from a clumsy legal threat to suppress constitutionally protected speech into an exposé of that attempt in order to educate others who might receive these types of letters that they need not be intimidated.
PopFront and the ACLU will not be caving in to Swift's bogus legal threats. Nor will they be building a time machine to comply with the demands for a retraction "no later than" one day before the legal threat was actually sent.
And later in the letter:
Stupid defamation claims and bogus copyright language are Streisand-bait. Someone working for a top-tier law firm and representing a top-tier artist should know better. And perhaps attorney William Briggs does know better, but has chosen to serve his client as well as possible given the circumstances. But providing top tier service doesn't necessarily mean acquiescing to every client demand. Briggs and Venable should have taken a pass on this one. Instead, they're going to be the recipient of the sort of criticism they attempted to quell with this misguided demand letter.
Filed Under: alt right, copyright, defamation, fere speech, meghan herning, slapp, taylor swift, threats, william briggs
Companies: aclu, popfront, venable llp
Taylor Swift's Streaming Rant Nearly Identical To Garth Brooks' Used CD Rant
from the will-swift's-statement-look-so-silly-years-later? dept
Fri, Jul 31st 2015 12:21pm - Parker Higgins
The music business tends to repeat itself. Conversations that seem completely intertwined with new technologies mirror those over earlier developments. Read Adrian John's Piracy, for example, and see how closely the file-sharing debate followed the one about sheet music a century earlier.
Even with that background, the parallels between Taylor Swift's widely discussed comments about Apple Music earlier this year and Garth Brooks' outspoken stance on used CD sales are striking. It's hard to argue with Swift—she is, after all, a shrewd businesswoman, and who knows what the future holds — but the fact that Brooks' fears proved so unfounded takes some of the winds out of her sails. We may be at the end of history, and today's problems might be totally unlike the ones we faced before, but probably not.
Here's an excerpt of what Swift said about Apple's free trial:
I'm sure you are aware that Apple Music will be offering a free 3 month trial to anyone who signs up for the service. I'm not sure you know that Apple Music will not be paying writers, producers, or artists for those three months. I find it to be shocking, disappointing, and completely unlike this historically progressive and generous company.
This is not about me. Thankfully I am on my fifth album and can support myself, my band, crew, and entire management team by playing live shows. This is about the new artist or band that has just released their first single and will not be paid for its success. This is about the young songwriter who just got his or her first cut and thought that the royalties from that would get them out of debt. This is about the producer who works tirelessly to innovate and create, just like the innovators and creators at Apple are pioneering in their field…but will not get paid for a quarter of a year's worth of plays on his or her songs.
And here's a journalist from the Seattle Post-Intelligencer paraphrasing Brooks' comments at his sold-out arena concert, a few months after announcing he would only be selling his new record at stores that did not carry used CDs.
Brooks said that because no royalties are paid on the sale of used CDs, writers, labels, publishers and artists were being cheated. He said he would only supply chains that sell used CDs with his cassettes, and hinted that he might be working on another "format" to thwart such sales.
Brooks said he does not need any money, but lesser-known artists could suffer if secondhand CD sales take off. If used CD sales were to go into massive retail, he said, it would severely affect people in the recording industry, creating a sales loop that would profit only stores but not the creators, publishers and artists.
CD retailers, meanwhile, have argued that the cost of new CDs is too high for young buyers, and that selling used CDs exposes an artist's music to different audiences.
For both Swift and Brooks — each among the best-selling acts of their generation — an emerging marketplace that makes music more accessible — but less well-compensated — was worth speaking out about. They both note that it's not about them, but about the principle, and that the unpaid exposure would hurt new musicians. Both point to the middleman's profits as an obvious evil.
To my mind, both artists are mistaken about the value of exposure and discoverability. Tim O'Reilly's observation that obscurity is a greater threat to the emerging artist than piracy remains true; it's also true that obscurity is a greater threat than used record sales, free trials, and most everything else.
But on the other counts, too, Garth Brooks was wrong. Used CD sales didn't undermine the music industry and they didn't keep new artists from finding audiences.
We know this because his plan to sell only through certain CD stores failed, amidst anti-trust investigations into his record label.
Taylor Swift was, at least narrowly, right. Apple Music should've been paying royalties for its free trials all along. But elsewhere, her skepticism about streaming and business models that include "free" might not be well placed. Unfortunately, because music licensing in this space is fundamentally more of a permissions culture than selling plastic discs was, we may never find out.
Reposted from parker higgins dot net
Filed Under: garth books, history, music, predictions, rants, streaming, taylor swift, used cds
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