By: Miranda Stark
Big name artists are cracking down on fan-made art. Recently, Taylor Swift, Beyoncé, and Drake have expressed their disapproval of fan made art, which incorporates their song lyrics. Taylor Swift and Beyoncé sent cease and desist letters to other small product creators for using their name or lyrics. And, Drake posted a tweet expressing his disdain for Walgreens and Macy’s selling products with his lyric created acronym, “YOLO,” which stands for “you only live once.”
While, artists may trademark their song lyrics, those trademarks may be subject to fair use. When fair use is applied to trademarks, it may fall under descriptive fair use or nominative fair use. Nominative fair use is
…the use of another’s trademark to refer to the genuine goods or services associated with the mark. The term ‘nominative’ reflects that the mark generally is the most informative name for the specific goods or services intended to be referenced.”
New Kids on the Block v. News America Publishing, Inc. is often cited for its issue that dealt with nominative fair use of trademarks. In that case, several newspapers held polls to determine the most popular group member of New Kids on the Block in efforts to raise charity money. New Kids on the Block sued the newspapers for trademark infringement. Id. New Kids on the Block reasoned that the newspapers used the their trademarked group name, “New Kids on the Block” with “900” number telephone polls. Id. The court held that the newspapers did not commit trademark infringement. Id. The court found that nominative fair use is generally permissible as long as the product or service in question is not readily identifiable without use of the trademark. Id. Or, so much of the trademark is used as is reasonably necessary to identify the product or service and use of the mark does not suggest sponsorship or endorsement by the trademark owner. Id.
Trademark use is also permissible, when it is used “descriptively.” When an individual uses a trademark under descriptive fair use:
a user generally is permitted to use descriptive indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of rendering of the service, main raw materials, functions, weight, or other characteristics of the goods or services. Of course, this type of fair use typically is subject to such uses being in accordance with honest commercial practices that do not suggest association with the trademark owner and that do not depreciate the value of the goodwill in the mark.”
Beyoncé sent cease and desist letters to Etsy (a website where individuals can sell handmade and vintage goods) shop owners for selling mugs and other items with the word “Feyoncé” on them. This isn’t an actual song lyric, but a reference to Beyoncé’s song “Single Ladies,” and alludes to her name. In January 2014, Taylor Swift applied for trademarks for phrases from her song lyrics such as, “shake it off,” “this sick beat,” and “never go out of style.” And soon, Taylor Swift sent cease and desist letters to Etsy shop owners, who sold candles, mugs, and other items with these song lyrics on them. Drake threatened to sue Walgreens, Walmart, and Macy’s for selling hats and shirts with the acronym “YOLO.” Clearly, these items are not protected by either nominative fair use or descriptive fair use. And, if these words and phrases are trademarked, then many big name artists have the right to shut down the production of products that use them. However, some of these big name artists are threatening small creators of fan-made art with legal action.
Many of these small creators may not have the legal knowledge or financial ability to consult a lawyer about their fan-made art. Additionally, Etsy often deactivates “disputed” listings (listings that have received complaints of trademark or copyright infringement) without consulting these shop owners. Moreover, Etsy threatens their shop owners with permanent deactivation of their account, if they relist the disputed items. It is perfectly legal for artists to trademark their song lyrics. However, is it ethical for big name artists to shut down Etsy sellers? Is it fair? Are big artists stifling the creativity of other small artists? Artists are often inspired from their life experiences and naturally, other forms of art. Many sellers never even intend to make a profit, but simply wanted to share their art with other fans. Furthermore, small creators are not solely artists, but happen to be fans as well. Moreover, these small artists are the same fans that helped artists like Beyoncé and Taylor Swift rise to stardom and continue to keep them relevant. In the end, fans will be forced purchase “official” merchandise, which is prohibitively expensive, rather than inexpensive creative fan art.
Miranda Stark is a 2L at the Sandra Day O’Connor College of Law at Arizona State University. She is an associate editor for the Sports & Entertainment Law Journal.