Culture

Left Shark, Meet The Law: What Can Celebrities Actually Trademark?

CREDIT: AP Photo/Michael Conroy

Last week, Marshawn Lynch filed for the trademark to the phrase, “I’m just here so I won’t get fined.” If those words sound familiar, it’s probably because you remember the line as Lynch’s answer to over 20 questions on Super Bowl XLIX media day. Lynch’s Beast Mode apparel will sell shirts and sweatshirts emblazoned with the phrase within the month. Lynch has been down this road before; he filed for a trademark to “About that action BOSS” last year, and, according to ESPN, expects to own that trademark by the summer.

With his attempt to take ownership of “I’m just here so I won’t get fined,” Lynch is the latest in a wave of celebrities making suspect-sounding trademark claims. Taylor Swift filed for trademarks for a variety of lines from her album 1989, even seemingly banal phrases like “Nice to meet you, where you been?” Since last October, 37 applications have been filed on her behalf, including 16 different applications for “this sick beat.” (Filed for trademark, not to be confused with trademarked — as her requests are pending and denied by the U.S. Patent and Trademark Office — or copyright, which is a different legal term altogether.) Beyoncé went after Etsy for selling mugs with “Feyoncé” written on the side (the “o” was an engagement ring) until the seller removed those items from the site.

And, perhaps the most ridiculous-yet-hilarious fight of all, Katy Perry sent lawyers after Fernando Sosa, a sculptor who rendered the Left Shark from her Super Bowl halftime performance as a 3D computer file and made it available for download. After posting a Left Shark figurine for sale at $24.99, Sosa got a cease and desist letter from Perry’s lawyers. Sosa responded by hiring an attorney: Christopher Sprigman, a professor at NYU Law. When Perry’s initial copyright claims went nowhere — as Sprigman pointed out in a letter to Perry’s counsel, costumes can’t be copyrighted, and besides, Perry didn’t create the “Left Shark” meme; the internet did — her lawyers filed trademark claims for “left shark,” “right shark,” “drunk shark” and “basking shark.”

In a phone interview, Sprigman said that Sosa usually makes “funny, scathing sculptures of international despots, like Kim Jong Un. He makes fun of them.” So far, Perry is the only one to raise hell over Sosa’s products. “Vladimir Putin, as of yet, has not sued him or sent out a KGB hitman.”

How unprecedented are these broad trademark claims made on behalf of the uber-famous? “I haven’t seen any direct analogues to this. This seems to be a relatively recent phenomenon,” said Sprigman. He hesitates to call it a “trend” (“Maybe the New York Times would do a trend story about it”) but does think there’s a larger cultural shift at play, and artists like Perry, Swift and Beyoncé are the most highly visible representatives of that change.

“The music industry has always been kind of a rough and tumble place. It’s always been difficult to make a living as a musician,” said Sprigman. Today, while the recording industry’s revenues “have shrunk by about 60 percent, adjusted for inflation,” he said, “other aspects of the music industry are doing very well: live performance and merchandising.” File sharing “shifted the way the music industry makes its money, more toward live performance and merchandise and less toward recording. So what is Taylor doing? She’s trying to monetize her lyrics, not as part of a recording but on tote bags and on Christmas stockings.”

Trademark law doesn’t exist to protect a creator from the loss of profits; its purpose is to protect the consumer from confusion upon purchase. It gives protection to the words, phrases, designs, or even sounds that “identify the source of products. Because if consumers see three stripes on a sneaker, they think Adidas. And we don’t want consumers to be defrauded,” said Sprigman. “Trademark is very practical. So the question is whether people, if they see a Christmas stocking with ‘This sick beat’ on it, will think it’s been licensed by Taylor Swift. They will think that she is the source of the product.”

“So [trademark law] is not just about money, and no one should think it is,” said Sprigman. “It’s really about consumers, and maintaining consumer choice… It’s about making sure that I’m not fooled.”

It seems unlikely, though, that anyone would actually be confused about the source of any of these potential products. If a person saw a wind chime (yes, one of Swift’s applications includes “wind chimes”) with “this sick beat” written on it for sale on Etsy, would they really believe that it was Swift who created and is selling that merchandise? Does anyone actually see those “Feyoncé” mugs and think: from Beyoncé’s brain to my hands? Or, to pick what Sprigman thinks is the funniest of Swift’s applications, “Knitting implements. If someone sees a pair of knitting needles with ‘this sick beat’ on them, do people think, ‘Taylor Swift made these’?”

Then again, “Ten percent of people will always be confused about anything you ask them.”

Still, “If I wrote ‘this sick beat’ on a coaster, and if people are not confused about the source of the products, she has no rights,” said Sprigman. Lyrics, however, are copyrighted, so if you were to write out all the words to “Shake it Off” on the side of a battery-activated glow stick, Swift would have grounds to sue.

The problem is that “the law in the books is different from the law in the streets,” said Sprigman. Most people don’t know the nuances of trademark law, so if “some woman on Etsy is making ‘this sick beat’ baby bibs, they get a nasty letter from Taylor Swift’s lawyer, just like the Left Shark sculptor got a nasty letter from Katy Perry’s lawyer, setting forth claims that are mostly baloney. But unless you’re willing to hire a lawyer, you just stop doing what you’re doing. One of the problems with trademark law is often they give people rights in the real world that they don’t actually have in the law world. But to access law world, you have to have a lawyer, and that’s expensive.”

Should the U.S. Patent and Trademark Office actually grant all these trademark claims, that action could lead to the very problem trademark law intends to prevent. “It’s what social scientists would call an endogenous problem. If we enforce trademark law every time, and we just keep enforcing them like bang, bang, bang, life evolves such that regular people walking around begin to think that every time they see some phrase associated with a celebrity on a t-shirt, that shirt must be licensed by the celebrity. So trademark law is, theoretically, kind of troubled. It becomes circular.”

What is this really about, anyway? It’s not like these stars need the cash. “You’re always tempted to say ‘money,’ but I actually don’t think it’s the money, because Beyoncé and Taylor have more money than they know what to do with. Only a sociopath would go to this trouble for the extra money,” said Sprigman. “I think it’s about control. It’s the idea that, ‘I was the genius who came up with the phrase ‘this sick beat.’ I don’t want some punk on Etsy making baby bibs.’”

feyoncemug1

CREDIT: Etsy

Take Katy Perry who, Sprigman points out, is trying “to grab hold of an internet meme… She thinks whatever happens at the halftime show, she owns. Nobody else can have any fun with it. It’s all about her.”

Thinking about these trademark claims as a power issue, not an economic one, actually makes more sense when you think about the stars in question. Beyoncé and Swift are two of the most famously controlling people in the music industry. Remember when Beyoncé tried to have unflattering images of her Super Bowl halftime performance scrubbed from the internet? Or that GQ profile of her in which it was revealed that she keeps “virtually every existing photograph of her… every interview she’s ever done; every video of every show she’s ever performed; every diary entry she’s ever recorded while looking into the unblinking eye of her laptop” in a “temperature-controlled digital-storage facility,” all compiled by a visual director employed by Beyoncé to shoot “practically her every waking moment, up to sixteen hours a day, since 2005,” so that she can profit from and (more importantly) dictate the nature of their distribution? Swift, too, is famous for her “insanely driven, hyper self-controlled perfectionism.”

I say this not to bury but to praise — it is this kind of Tracy Flick-focus that separates the Beyoncés from the Michelles, so to speak — but the point is, while money is never not a factor when considering the decisions of the uber-wealthy, it’s not the factor for people like Swift, Beyoncé, or even Perry. There’s no reason to be surprised that the woman who sings “bow down, bitches” wants total supremacy over everything even tangentially related to her image, her name and her work. You can practically see her, Mufasa-like, surveying her kingdom: everything the light touches is hers. Or at least, that’s what she wants and feels entitled to have. And maybe she’s right, though that kind of effort could backfire, optics-wise, if fans start to resent the way a star behaves toward the fans.

Sprigman compared Perry’s actions to a celebrity demanding a civilian switch seats at a restaurant so the star can get the table he or she wants. “That is, too often, the kind of mentality that people who live at a remove from the rest of us adopt… Attitudes like this will eventually get Taylor and Katy in trouble with the internet. The public’s opinion about celebrities is kind of like quicksilver; it can flow in a whole bunch of directions very quickly. My view is, if you live by celebrity, you’ve got to be extremely careful about the little people that you step on. Because the internet really just doesn’t like a bully.”

Besides, the internet is an unwieldy place. Katy Perry can’t stop the masses from making the Left Shark into a meme. Beyoncé might be the queen, but there’s still plenty of Feyoncé merchandise for sale on Etsy. There are even a few “this sick beat” items up for grabs, along with a mug that reads: “THIS IS NOT A TAYLOR SWIFT COFFEE MUG. (Please don’t sue me.)”