Navigating the Legal Complexities of Taylor Swift-Inspired Merchandise on Etsy: Copyright, Trademark, and Right of Publicity

The Hustle’s wrote an article that delves into the thriving market of Taylor Swift-inspired merchandise on Etsy, created by entrepreneurial fans. While these ventures have proven lucrative for many, they also navigate a complex legal landscape due to the various protections available to the artist.

Fans like Holly Turner and Kaitlyn Crawford have found success in selling Swift-themed items, earning significant income. Turner, who takes the precaution of conducting copyright searches before creating her merchandise, asserted that she only uses lyrics that are not copyrighted.

However, this reflects a common misconception about copyright law. In reality, as soon as an original work is created and registered with the U.S. Copyright Office, it is protected by copyright, including song lyrics. This means that even if a fan believes they are using non-copyrighted lyrics, they could still potentially be infringing upon the artist’s copyright.

This is just one example of how the creation and sale of such merchandise can be fraught with legal complexities, particularly around copyright infringement, the right of publicity, and trademark enforcement.

Copyright Infringement: Sellers must ensure they are not using copyrighted material, such as Swift’s lyrics or album covers, in their designs.

Trademark Enforcement: Swift has over 200 trademark registrations, including a trademark on the word ‘Swiftie.’ Unauthorized use of these trademarks could lead to legal action.

Right to Publicity: This is a legal concept that gives an individual the exclusive right to control the commercial use of their name, image, likeness, or other unequivocal aspects of their identity. In the context of Taylor Swift, this right could potentially be infringed upon in several ways:

1. Use of Name: Even partial use of Swift’s name in product descriptions, titles, or tags could be seen as an attempt to profit from her identity, infringing on her right of publicity.

2. Use of Likeness or Image: The use of Swift’s photos, drawings, or other representations, or any distinctive attributes closely associated with Swift, could also infringe upon her right of publicity.

3. Implication of Endorsement: If a product is presented in a way that implies Swift’s endorsement or association, it could be seen as a misuse of her right of publicity. This could be the case even if the product does not directly use her name or image but uses phrases or wording that hint at her.

Swift’s legal team has shown a willingness to enforce these rights, as evidenced by the legal threats issued to Etsy sellers in 2015. However, not all sellers have faced legal repercussions, possibly due to the sheer number of sellers or other factors.

While the market for fan-made Taylor Swift merchandise is thriving, it operates in a complex legal landscape. Sellers must tread carefully to avoid potential legal issues, as Swift has the legal means to halt these sales if she chooses to strictly enforce her copyrights, right of publicity, and trademarks.

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