In her iconic video for "Single Ladies," Beyoncé effortlessly teases viewers with her left hand — flipping back and forth and back again-cooing "If you like it then you shoulda put a ring on it."
If this were 1999, we would have seen this music video introduced by Carson Daly for the first time on MTV's "Total Request Live," rushed to the nearest Sam Goody to buy the single CD, taken that CD and burned a copy to upload to the peer-to-peer file sharing website Napster. The 1999 music world contemplated monetization and intellectual property enforcement with a calculated, predictable and copyright heavy approach.
Fast forward to 2016, to a music world filled with endless streaming, digital drops and regular album leaks. The currency of selling albums has plummeted in value, and so too has the exclusive intellectual property power that copyright law once provided to musicians. Today, trademark law rules when it comes to the monetization of music. Beyoncé's recent lawsuit filed in U.S. District Court for the Southern District of New York (No. 16-02532) against individuals selling merchandise emblazoned with "FEYONCÉ" and "he put a ring on it" embodies this shift.
Indeed, Beyoncé claims the use of FEYONCÉ is confusingly similar to her own trademarked name BEYONCÉ. She also claims use of "he put a ring on it" evokes lyrics from her 2008 hit "Single Ladies." But Beyoncé, affectionately referred to as "Queen Bey" by her fan base, the BeyHive (also a trademarked name), is not the only one to enforce her trademark rights as they refer to her songs. Taylor Swift filed trademark registrations for lyrics from her 1989 album including "This Sick Beat" and "Cause We Never Go Out of Style" in order to preempt any third party merchandise from using her famous lyrics. And this was just round one. Ms. Swift subsequently filed a number of other trademarks as her 1989 album grew in popularity; adding "Blank Space," "And I'll Write Your Name," "A Girl Named Girl" and "1989" to her trademark portfolio just months after her original filings.
Not only are artists investing in trademark protection early by filing trademark applications, but by using the lyrics-turned-trademarks on apparel immediately. Prior to her Super Bowl appearance and immediately after the surprise release of her music video for her empowering single "Formation," Beyoncé's official online store offered fans "Formation" inspired merchandise (e.g., "Twirl On Them Haters" sweatshirts and "I Got Hot Sauce In My Bag" carry all bags). And this rush to create merchandise is with good cause. With the advent of customization websites and marketplaces such as Etsy for third party vendors, it is easier than ever for individuals to create custom merchandise and make a profit off of placing famous lyrics on T-shirts and coffee mugs.
The actions of artists and their legal teams tell us the tide is turning. Copyright law may still run the (music) world, but trademark law provides musicians with an upgraded approach to monetization in the digital age. Fans no longer just listen to the music, but rather they incorporate it into their daily lives and social media presence — through lyrical hashtags, YouTube music covers and wearing shirts proudly showcasing their favorite lyrics. The value in a single or in the songs contained within an album are no longer just in the music itself; the lyrics provide just as much value. Song lyrics have become a brand closely linked to the brand of the musician. And so, in order to be competitive and continue to monetize, musicians are incentivized to not only create unique, quotable lyrics to accompany infectious beats, but to protect and monetize those lyrics as a brand through the protections offered by trademark law.
OK, lawyers now let's get in formation.
Gabriella E. Ziccarelli is an intellectual property attorney in Washington D.C.; her email is email@example.com; Twitter: @IPwithGZ.