2024 Volume 26 Issue 1
Preface - Taylor Swift: Law, Culture and Power (Part 1)
Brendan Clift (General Editor)
Preface
Welcome to Part 1 of this special double issue of the Media and Arts Law Review.
This issue explores intersections between Taylor Swift — singer, songwriter, entertainer, influencer, businesswoman and, as one contributor argues, icon — and law.
As Swift’s star has inexorably risen, she has trodden pathways established by others, but she has also carved her own impression on the world by dint of the remarkable scope and scale of her success. Her impact on law has varied widely, as she has evolved from a young artist whose creative labours were commoditised via legal means for the enrichment of others, to a mega-success with the cultural and economic resources to leverage law to her own ends, at times even influencing the adjudication and making of law, for purposes sometimes altruistic, sometimes self-interested and sometimes inscrutable. Swift’s rise can be celebrated for many reasons, but it also raises questions. Who is this person? What are we to make of the power she wields? And what might she empower or inspire us, and others, to do?
Part 1 focuses on Taylor Swift’s adventures in intellectual property law. It opens with an account of Swift’s most notorious maneuver: the re-recording and re-release of her early albums as ‘Taylor’s Version’ after her fractious relationship with her first record label finally broke down and her back catalogue was sold and resold against her wishes. Wellett Potter’s contribution sets out these events and explains how US copyright law facilitated the commercial exploitation of Swift but then, also, her move to ‘break free’ and reassert ownership and control of her creative output. Along the way, Potter documents the use of other legal weapons in this and other entertainment industry power struggles, including non-disclosure agreements and restraint of trade clauses, and explores legal tools that could support greater artists’ rights, like parental fiduciary duties and expanded moral rights. Potter’s account demonstrates that Swift was able to win because of who she was and what she had achieved, but it also argues that Swift’s legal and non-legal tactics — including public advocacy for artists’ rights and mobilising her fanbase via social media — have shown how others can resist the industry’s exploitative practices.
It is hard not to take Swift’s side in her copyright battle, but when it comes to trademarks, she was never a victim. In this field she is an apex predator. Sruthi Balaji shows that Swift has many more US trademarks than comparable artists, and that her rights management company is both aggressive and persistent in securing and defending registrations relating to her song and album titles, her lyrics and even her cats. Balaji illustrates the situation via a detailed study of Swift’s ‘Lover’ marks, some of which were registered only after years of back-and-forth with a reluctant trademark authority and after paying off and co-opting support from the holders of comparable marks. Balaji notes that the ‘why’ of Swift’s trademark empire is not always clear, but argues that her relentless and ultimately irresistible pursuit of registrations is creating ‘Taylor’s Version’ of trademark law, in which the usual rules on issues like genericism, indication of source and likelihood of confusion are overwhelmed. All the while, the continuing growth of Swift’s personal brand and her trademark portfolio creates a virtuous circle assuring more of the same.
The complementarity of the many sides of the Swiftverse is an idea at the heart of this part’s third article, which explores how Swift’s parasocial relationship with her fans builds on, and adds value to, her intellectual property portfolio. Emma Perot and Justin Koo argue that this parasocial relationship — where fans bond not with a person they know in reality but with an entertainer’s public persona — is bi-directional, in that Swift’s fans are so actively and enthusiastically involved with her creative product that they co-create its meaning. Drawing on literature from cultural studies and marketing on how meaning is made and conveyed, Perot and Koo argue that the relationship draws from and enriches Swift’s store of copyrighted creative works, and also adds value downstream to her trademarks and trademark-bearing items, as they no longer merely indicate the origin of goods but become imbued with all it means to be Swift and to be a Swiftie.
Part 2 will go deeper into the Swiftverse, considering her landmark victory counter-suing a defamation claimant for sexual assault, how her icon status generates influence regardless of doubts over her authenticity, and how we might learn from Swift’s storytelling techniques to better hear and interrogate legal narratives.
Welcome to Part 1 of this special double issue of the Media and Arts Law Review.
This issue explores intersections between Taylor Swift — singer, songwriter, entertainer, influencer, businesswoman and, as one contributor argues, icon — and law.
As Swift’s star has inexorably risen, she has trodden pathways established by others, but she has also carved her own impression on the world by dint of the remarkable scope and scale of her success. Her impact on law has varied widely, as she has evolved from a young artist whose creative labours were commoditised via legal means for the enrichment of others, to a mega-success with the cultural and economic resources to leverage law to her own ends, at times even influencing the adjudication and making of law, for purposes sometimes altruistic, sometimes self-interested and sometimes inscrutable. Swift’s rise can be celebrated for many reasons, but it also raises questions. Who is this person? What are we to make of the power she wields? And what might she empower or inspire us, and others, to do?
Part 1 focuses on Taylor Swift’s adventures in intellectual property law. It opens with an account of Swift’s most notorious maneuver: the re-recording and re-release of her early albums as ‘Taylor’s Version’ after her fractious relationship with her first record label finally broke down and her back catalogue was sold and resold against her wishes. Wellett Potter’s contribution sets out these events and explains how US copyright law facilitated the commercial exploitation of Swift but then, also, her move to ‘break free’ and reassert ownership and control of her creative output. Along the way, Potter documents the use of other legal weapons in this and other entertainment industry power struggles, including non-disclosure agreements and restraint of trade clauses, and explores legal tools that could support greater artists’ rights, like parental fiduciary duties and expanded moral rights. Potter’s account demonstrates that Swift was able to win because of who she was and what she had achieved, but it also argues that Swift’s legal and non-legal tactics — including public advocacy for artists’ rights and mobilising her fanbase via social media — have shown how others can resist the industry’s exploitative practices.
It is hard not to take Swift’s side in her copyright battle, but when it comes to trademarks, she was never a victim. In this field she is an apex predator. Sruthi Balaji shows that Swift has many more US trademarks than comparable artists, and that her rights management company is both aggressive and persistent in securing and defending registrations relating to her song and album titles, her lyrics and even her cats. Balaji illustrates the situation via a detailed study of Swift’s ‘Lover’ marks, some of which were registered only after years of back-and-forth with a reluctant trademark authority and after paying off and co-opting support from the holders of comparable marks. Balaji notes that the ‘why’ of Swift’s trademark empire is not always clear, but argues that her relentless and ultimately irresistible pursuit of registrations is creating ‘Taylor’s Version’ of trademark law, in which the usual rules on issues like genericism, indication of source and likelihood of confusion are overwhelmed. All the while, the continuing growth of Swift’s personal brand and her trademark portfolio creates a virtuous circle assuring more of the same.
The complementarity of the many sides of the Swiftverse is an idea at the heart of this part’s third article, which explores how Swift’s parasocial relationship with her fans builds on, and adds value to, her intellectual property portfolio. Emma Perot and Justin Koo argue that this parasocial relationship — where fans bond not with a person they know in reality but with an entertainer’s public persona — is bi-directional, in that Swift’s fans are so actively and enthusiastically involved with her creative product that they co-create its meaning. Drawing on literature from cultural studies and marketing on how meaning is made and conveyed, Perot and Koo argue that the relationship draws from and enriches Swift’s store of copyrighted creative works, and also adds value downstream to her trademarks and trademark-bearing items, as they no longer merely indicate the origin of goods but become imbued with all it means to be Swift and to be a Swiftie.
Part 2 will go deeper into the Swiftverse, considering her landmark victory counter-suing a defamation claimant for sexual assault, how her icon status generates influence regardless of doubts over her authenticity, and how we might learn from Swift’s storytelling techniques to better hear and interrogate legal narratives.
Articles
Abstract
This article examines the relationship between copyright law, contractual rights and artists’ experiences in the music industry through the lens of Taylor Swift. It analyses Swift’s highly publicised legal dispute with her former label which led to her re-recording her initial six albums, creating what is known as ‘Taylor’s Version’. It argues that Swift’s re-recording strategy pointed the way towards fairer artists’ rights by drawing attention to the implications of copyright ownership and contracts in the music industry. Via examination of US and Australian copyright, contract law and moral rights, the article suggests that Swift’s re-recording strategy and public advocacy have challenged industry norms and influenced conversations about artists’ rights.
This article examines the relationship between copyright law, contractual rights and artists’ experiences in the music industry through the lens of Taylor Swift. It analyses Swift’s highly publicised legal dispute with her former label which led to her re-recording her initial six albums, creating what is known as ‘Taylor’s Version’. It argues that Swift’s re-recording strategy pointed the way towards fairer artists’ rights by drawing attention to the implications of copyright ownership and contracts in the music industry. Via examination of US and Australian copyright, contract law and moral rights, the article suggests that Swift’s re-recording strategy and public advocacy have challenged industry norms and influenced conversations about artists’ rights.
Because you break them, I had to take them: Taylor’s Version of Lover and trademark
Sruthi Balaji
Abstract
While the vast number of trademarks registered by Taylor Swift may not be the reason we cannot have nice things, they have tied up many Swift-related words and phrases to the exclusion of others. This article explores Swift’s use of trademarks in the United States and analyses how these marks have come to function as her property rather than as trademark law intended, as a consequence of the commercial and legal power that comes from being Taylor Swift. This research uses the ‘Lover’ trademarks as a case study, considering the registration process, the difficulties and controversies along the way, and the unwavering persistence of Swift over more than four years to obtain the desired legal rights. It concludes that the trademark portfolio of Taylor Swift is symbolic of her unique power as a musician and businesswoman. After all, she did promise that we’ll never find another like her.
While the vast number of trademarks registered by Taylor Swift may not be the reason we cannot have nice things, they have tied up many Swift-related words and phrases to the exclusion of others. This article explores Swift’s use of trademarks in the United States and analyses how these marks have come to function as her property rather than as trademark law intended, as a consequence of the commercial and legal power that comes from being Taylor Swift. This research uses the ‘Lover’ trademarks as a case study, considering the registration process, the difficulties and controversies along the way, and the unwavering persistence of Swift over more than four years to obtain the desired legal rights. It concludes that the trademark portfolio of Taylor Swift is symbolic of her unique power as a musician and businesswoman. After all, she did promise that we’ll never find another like her.
Leveraging the parasocial relationship for intellectual property rights (Taylor’s Version)
Emma Perot and Justin Koo
Abstract
Taylor Swift and her team have worked assiduously to develop her branding and intellectual property portfolio. Today, Swift is a billionaire in large part due to the success of her Eras Tour. That financial success is built upon leveraging the parasocial relationship she enjoys with her fans. This article proposes that intellectual property assets are most lucrative where celebrities like Swift construct a bi-directional parasocial relationship allowing fans to co-create meaning. In the absence of a parasocial relationship, the value of products, including intellectual property rights, are limited to their inherent utility. As a result, it is proposed that the stronger the parasocial relationship and resultantly the more meanings that can be generated, the greater the opportunity to grow one’s fanbase.
To examine this proposition, the fields of cultural studies, marketing and the communication function in trademarks will be discussed to demonstrate how the existence of a bi-directional parasocial relationship adds value to one’s intellectual property portfolio.
Taylor Swift and her team have worked assiduously to develop her branding and intellectual property portfolio. Today, Swift is a billionaire in large part due to the success of her Eras Tour. That financial success is built upon leveraging the parasocial relationship she enjoys with her fans. This article proposes that intellectual property assets are most lucrative where celebrities like Swift construct a bi-directional parasocial relationship allowing fans to co-create meaning. In the absence of a parasocial relationship, the value of products, including intellectual property rights, are limited to their inherent utility. As a result, it is proposed that the stronger the parasocial relationship and resultantly the more meanings that can be generated, the greater the opportunity to grow one’s fanbase.
To examine this proposition, the fields of cultural studies, marketing and the communication function in trademarks will be discussed to demonstrate how the existence of a bi-directional parasocial relationship adds value to one’s intellectual property portfolio.