Several media outlets report that Jesse Braham (real name Jesse Graham), an out of work and seemingly unknown musician, has filed a federal lawsuit Taylor Swift alleging that she stole the lyrics for her hit song “Shake It Off” from his song “Haters Gonna Hate.” In his complaint, Braham asserts “if Jessie Braham did not write the song ‘Haters Gone Hate,’ then Taylor Swift would not have written the song ‘Shake It Off.'”
Maybe it’s because I’m a huge Taylor Swift fan, but I believe that’s a very bold statement for Mr. Braham to make. Ms. Swift, while recycling heartbreak, her manic-pixie-dreamgirl persona, and those faces she makes whenever she wins an award, (you know it– the “I-can’t-believe-I-won-how-shocking!” look) probably didn’t need a huge deal of inspiration in rearranging five words to get her point across. Our job as attorneys, however, isn’t to chatter about the original songwriting prowess of our favorite blonde twenty-something, but to break down the legal argument behind the claim.
Trademark Rights are Limited
A trademark owner can stop other businesses that sell the same product or service from using a confusingly similar trademark in a way that is likely to cause customer confusion about the source of the goods or services. That’s it. That’s all the power a trademark owner has. If there is no confusion, then there is no infringement.
So for example, companies making different products can use identical trademarks, like GERBER for baby food and GERBER for knives. No one is likely to confuse baby food for knives, or vice versa, and so there is no infringement.
Published by James Creekmore and Andrew P. Connors, this article in the Liberty University Law Review examines some common intellectual property issues that artists face, including corporate and business law, contracts, licensing, and fair use.
You can download the full article from SSRN.