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This article is written by Ansruta Debnath, a student currently pursuing the BA LLB degree from National Law University Odisha. This article on the dispute that Taylor Swift recently got entangled in with regards to her latest new album ‘Evermore’.

Introduction

Popstar and female icon Taylor Swift recently clashed with Utah based theme park on the word “Evermore”. Suits and countersuits had been filed with regards to trademark and copyright issues, with the climax being both sides unanimously agreeing to drop their respective suits. This article delves into the entire legal battle and gives an overview of the relevant laws in the United States. Laws related to the same issues which are present in India have also been briefly enumerated.

Suit against Swift

Evermore Park is a fantasy theme park in Pleasant Grove, Utah in the United States of America. It was launched in 2018 (the name was registered in 2015) and offers an immersive experience to all its visitors. With costumed actors and enchanting sets, the park promises to let its visitors escape into a world of magic and mystery. 

Taylor Swift released her album Evermore, in December of 2020, sending all Swifties into a frenzy. It was her second pandemic album and sister album to Folklore which was released in July of the same year. Describing Evermore as an imaginary world of escapism just like Folklore, Mama Swift (as she is lovingly called by her devoted fan base) presented to her listeners, few of the most elegant songs she has ever written in her career. Just like any pop star, she also, consequently, launched Evermore themed merchandise on her website.

The Park in February of 2021 initiated a suit against Swift, her TAS Rights Management Company and merchandise company, Taylor Nation claiming that they suffered immense losses since the launch of the album and its related merchandise. Their main contention was that Swift had infringed on the trademark “Evermore” which belonged to the Park. They further contended that confusion was being created over park related products and album related ones and that online traffic on their website had drastically reduced since the launch of the album (A quick Google search of the word “Evermore” automatically shows Taylor Swift related websites; Evermore park is not showing unless a specific search is done and thus the last claim is not unfounded). Park representatives also criticised Swift’s “Willow” music video which is fantasy and magic themed and was alleged to be an imitation of the park’s theme.

After a “cease and desist” was sent to Swift, the web link to Swift’s Evermore merchandise website was removed. The company still alleged that said removal did not make up for the losses they suffered against the nearly $1 million that was spent on advertising, securing a domain name etc for their park. They also claimed that close to $37 million was spent on “creation and promotion of Evermore Park and the Evermore trademark,” with much of that amount coming from CEO and Founder Ken Bretschneider himself. 

Trademark infringement laws in the U.S.

A trademark is any word, name, symbol, or design, or combination that is being used in trade and commerce to ascertain a difference between those sold by the manufacturer who holds the trademark from other products. The trademark is generally associated with the reputation and goodwill of the manufacturer. Shapes, sounds, fragrances and colours may also be registered as trademarks.

In the United States, Congress has the power to regulate intellectual property. This power flows from the Commerce Clause which is Clause 3 of Article 1, Section 8 of the US Constitution. The U.S. Patent and Trademark Office (PTO) is responsible for issuing and monitoring federally registered patents and trademarks. Although patents are exclusively governed by federal law, trademarks may also be regulated by State law.

The U.S. trademark Law is the Lanham (Trademark) Act, 1946. It does a number of things like banning false advertising, trademark infringement etc.

Registration of a trademark is not mandatory to get protection for the same. According to principles of the common law, trademark rights get automatically acquired when a business uses a name or logo in commerce, and are enforceable in state courts. However, registered trademarks get wider protection from the U.S. Patent and Trademark Office.  

There are two basic requirements that need to be met for a trademark to be accorded with federal protection, i.e.,

  1. The mark must be used in commerce.
  2. The mark must be distinctive. There are four categories of distinctiveness;
  1. Arbitrary and Fanciful- Maximum and strongest protection,
  2. Suggestive- Moderate protection,
  3. Descriptive- Weak protection,
  4. Generic- No protection.

Similar Indian legal provisions

Definition

Trademarks in India are governed by the Trade Marks Act, 1999. In that Act, trademarks have been defined under Section 2(zb) as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours

Ambit of protection

The Trade Marks Act provides for registration of service marks, filing of multiclass applications, increasing the term of registration of a trademark to ten years as well as recognition of the concept of well-known marks, etc. The Indian judiciary has also extended the protection of trademarks to domain names. 

For example, the Delhi High Court, in the case of Verizon Trademark Services LLC & Ors. vs. Bhabani Sankar Swain & Ors. (2016), prevented the defendants, by way of an injunction, from infringing upon the trademark of Verizon owned by the plaintiff and including their domain name within the scope of the said trademark.

Registration

Registration in India is also not mandatory for the protection of trademarks. The 1999 Act has provisions of infringement of registered trademarks as well as of passing off which is a common law principle for protecting unregistered trademarks (Section 135). The Tort Law of passing off prevents one person from misrepresenting someone’s goods as his own. 

In the case of Medicure Hygiene v. Medicare Hygiene (P) Ltd. (2013), it was held that Medicure and Medicare were deceptively similar and the defendants were with dishonest intentions and in bad faith encashing the good faith and reputation of the petitioner. Since the trademark was unregistered, a passing off injunction was ordered against the defendants.

Well-known trademark

As mentioned above, Indian laws also recognize the concept of ‘Well-known’ trademarks. The concept finds mention in Section 9 and Section 11 of the Trade Mark Act, 1999. 

In the case of Hindustan Pencil Ltd. v. Gyanandra Kumar & Ors. (2006), the defendants were prevented from using the Apsara carton because its features, as well as the name Apsara, was a well-known trademark of the petitioners, within the scope of Section 11 of the Trade Mark Act, 1999. 

The countersuit

Taylor Swift’s battalion of lawyers claimed that the allegations of Evermore Park were unfounded and had to be on some basis to hold up in court. They further contended that this suit was a desperate move by the Park’s management to get money because they have been having significant financial issues. Swift’s lawyers based their arguments on a 2020 report by Utah Business (a magazine) that found the park faced “financial ruin,” owing millions of dollars to its construction contractors. According to the magazine, Evermore Park was already facing at least five lawsuits from major construction companies. 

Simultaneously, Taylor Swift slapped Evermore Park management with a countersuit for copyright infringement. Swift contended that the Park performers had been singing her songs like “Bad Blood” and “Love Story” and songs of other artists like Katy Perry without obtaining appropriate licenses. The Park had previously been cautioned about its staff members entertaining guests with “unlicensed public performances” of popular songs. Apparently, Swift’s management had been sending warnings since 2019 but they had all been ignored.  Also, Swift’s lawyers claimed Evermore Park’s CEO sought “retroactive” authorization that would cover all public performances since 2019 after the countersuit had been filed.

Copyright infringement laws in the U.S.

American law defines copyright as the exclusive right to reproduce, publish, sell, or distribute the matter and form of something. 

In the United States, copyrights are completely governed by federal law and need to be registered in the U.S. Copyright Office to be legally enforceable. The U.S. Copyright Act initially protected the writings of authors. Now, the scope of “writing” has dramatically increased with the evolution of technology. The Copyright Act now covers software, graphic arts, movies, sound recordings etc. Thus, the Copyright Act protects within its ambit all works which have a concrete and tangible method of expression.

Registration of copyright is voluntary and may take place at any time during the period of protection. Moreover, although registration is not a prerequisite for protection, for a suit of copyright infringement to take place, the copyright must be registered first at the Copyright Office. 

The author’s copyright is usually protected for 70 years after his or her death. If the piece was a “work for hire” copyright lasts for 120 years after it was created or 95 years after it was published, whichever comes first. The copyright term laws for works created before 1978 are a little complicated to ascertain. For a work to be eligible for protection under copyright laws, it must have a certain minimal degree of creativity and originality.

Similar Indian legal provisions

Definition and ambit

Indian copyright laws are governed by the Copyright Act, 1957 and the Copyright Rules, 2013. The Copyright Rules were revamped in 2013 and replaced the original Copyright Rules, 1958.

In India, judicial precedents add to India’s copyright law sources. The Berne Convention (1886) and the Universal Copyright Convention (1952) are both signed by India. The International Copyright Order, 1999 was also enacted by the Indian government. Any book originally published in any nation that is a member of any of the above conventions is given the same status as if it was first published in India, according to this Order.

Section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.

The meaning of copyright is given in Section 14 of the 1957 Act. It protects expressions of ideas rather than the ideas themselves. To elaborate, copyright can be sought on the originality of the way a particular idea has been expressed, not only on the originality of the idea itself.

In Eastern Book Company v. D.B. Modak (2007) it was held that for a derivative work to have copyright protection, the author must produce the material with the exercise of his “skill and judgment with a flavour of creativity”.

 Protection to the author and owner of the copyright is accorded under two umbrella aspects i.e.,

  1. Economic Rights 
  2. Moral Rights- Rights of Paternity and Integrity 

First owner

Section 17 of the 1957 Act recognizes the first owner of any work. It is a very important concept in the Act. This principle of first ownership was reiterated in the important case of Tata Consultancy Services v. State of A.P. (2005).

Duration of protection

As provided in Section 23, for literary, dramatic and musical works, the period of copyright enforceability is 60 years from the day the author dies, or 60 years from when the last author dies (in case of joint-ownership) or 60 years from the date of publication (in case the author is unknown). In the case of cinematograph films and sound recordings, it is 60 years from the date the work has been published. 

The culmination and conclusion

Both sides of the legal battle have agreed to drop their respective suits without any monetary compensation. This is probably because there is validity of arguments on both sides and both the suit and the countersuit do have substance. But on the face of it, it would have been much more difficult to prove a trademark infringement as according to the U.S. PTO database, there are 50 registered trademarks for Evermore. Thus, given the financial woes of Evermore Park and Swift’s desire to not be wrapped up in any controversy unnecessarily, it is for the benefit of both that the suits are dropped.

References

  1. Long Story Short: Utah’s Evermore Park v. Taylor Swift • Salt Lake Magazine
  2. Here’s Why Taylor Swift Is Fighting With A Utah Theme Park
  3. Trademark | Wex | US Law | LII / Legal Information Institute
  4. Trademarks Law In India – Everything You Must Know – Intellectual Property – India
  5. Copyright | Wex | US Law | LII / Legal Information Institute
  6. Copyright Law in India – Copyright Office, Copyright act
  7. Trade Mark Act, 1999
  8. Copyright Act, 1957.

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