How To Own Words: Be Rich
About a year ago Taylor Swift applied for the trademark for the astoundingly original phrase “This Sick Beat” and there is no reason to believe she won't eventually receive it. Now, I’m sure T. Swift is a perfectly fine human being, but I also think this is an excellent example of how regulations inherently favor the rich, and hurt the poor. This is not to say Swift should not try to trademark the phrase. People need to make a living and to do that they have to take advantage of whatever legal means are permitted by authorities. But that doesn't mean she should be able to do this.
Sure, one could argue she added value to the phrase and should be allowed to profit from it. But no one is stopping her from profiting from it. In fact, Swift has an incredible advantage in the marketplace already. She has a massive audience and fan base, a sophisticated marketing apparatus, and no doubt existing relationships with manufacturers and retail outlets, not to mention a bottomless pit of capital. Apparently that’s just not enough for the richest of the rich.
Rochford explains that unlike copyright law, trademark rights don't require the phrases to be absolutely unique or for the applicant to have coined them personally. Therefore, obtaining the rights requires an artist to prove that they're profiting off of a phrase associated with their brand. In Swift's case, that could mean she has already manufactured, say, a "Shake It Off" salt-and-pepper set. Adds Rochford, "She's saying she wants the ability to make money off of the things she's created. Whether the net she's cast is too wide remains to be seen."
The Real Purpose of Laws
Basically, if you can make money off of an arbitrary sequence of words, you can acquire the right to monopolize those words so that you can earn more money off of those words. In other words, by definition trademarks such as these are essentially pointless because in order to prove you deserve it you need to be able to demonstrate an ability to generate revenue without it. But let's be honest, laws are never brought into this world to serve a rational purpose that benefits the whole population, trust me, I'm a lawyer ;). Arguably without fail, laws are brought into this world when a group of people are able to gain some kind of advantage and then leverage that advantage to enshrine it in law which is a guarantee that in the event of a legal dispute authoritarian measures will be used for the benefit of the aggrieved party. From this perspective the aforementioned dynamic makes perfect sense. Of course you have to make money on a phrase before you can trademark it, otherwise any peasant could do it.
But for people whose business is the power and influence that can be gained by manipulating the machine, having an advantage is not enough, they need to be able to infringe on other people’s freedom to print out whatever crap they want on t-shirts and hats and sell them to willing purchasers. It probably isn't even Taylor Swift behind this move. It's more likely the case that it's the machine she helped create. The lawyers, accountants, "corporate strategy experts," whose jobs are to manipulate the system for the benefit of their client: Taylor Swift. Do you really think that anyone in this process cares about whether these laws "stimulate innovation?" Whether they "protect" ordinary people's rights? Do they even make that claim?
Tax the 1%!
This is what people don’t understand when they think that raising taxes on the rich is the solution to the problem. I’m sure Swift, if asked, would act the philanthropist and make the daring (but completely meaningless) claim that she would be more than willing to pay her “fair share” of taxes. But this does nothing to her advantage, just like increasing taxes on rich individuals has no impact on the advantages that enabled them to amass an extraordinary amount of capital in the first place.
What it does is simply take a percentage of the gains from the advantage, run them through the filter of government bureaucracy, at the end of which one can only hope it will find a home in some imaginary government program which has been proven to have any beneficial impact on poverty. But, these advantages are invariably regulatory. They are privileges granted by the government, and so if someone were sincerely and honestly trying to remove them, the easiest and most efficient method would obviously be for the government to simply stop granting the advantage. Why this is never even discussed is hopefully obvious: because that would decrease government power and circumvent that bureaucratic filter adept at siphoning off funds as they flow through it. It would be a direct transmission of funds from those with money, to those who need it. Heaven forbid.
Why Can You Own Words?
Even these arguments, however, rest on a faulty assumption: that singing a phrase in a song makes someone deserving of special privileges with respect to those words. One might argue that Swift created the value in the phrase and therefore deserves to reap the monetary rewards. But the song is already generating monetary rewards for her. Also, isn’t it even more true that we created the value of those words? That the line in the song resonates, has some emotional or sensory impact on us because of the meaning, connotation, implication, emotional weight, that we give it?
We Built Those Words
As Elizabeth Warren might say, “Taylor Swift did not build that phrase, we did.” It’s not like Swift popularized a phrase from another language or jibberish, she’s using our words! The song is popular, and the phrase valuable, because we like it. In any other place and time, it would have no value. Music is entirely cultural, only a tiny percentage of it (especially when you’re looking at pop music) maintains any kind of relevancy outside of the very narrow time-frame in which it was released. In other words, the song, and so the phrase, would have no value in any other time, place, and most importantly population. We gave “sick” and “beat” new definitions and usages that both made the phrase possible and made it pleasurable. And yet ordinary Americans will not be free to capitalize on this value they created if they run afoul of the trademark.
All Swift has actually done is figure out a way to leverage her wealth, fame, singing ability, and legal team, to monopolize a phrase that would have no meaning without us, and so guarantee that as little money as possible goes to ordinary Americans and as much money as possible goes to Swift and the Taylor Swift machine. This is precisely why the rich continue to get richer and the poor continue to get poorer despite the fact that government has gotten bigger and bigger, and regulations more and more numerous—because these have no impact on this seemingly fundamental premise of the American system: that while it is The People who create value, only a small percentage of them are permitted to profit from it.
Again, I don’t blame people for taking advantage of the system or choosing to believe that because a law exists it must have a moral foundation and so could not possibly be the consequence of the lobbying efforts of some moneyed interest (as they actually invariably are). But what do you think is more likely to be true: that IP laws (which have their origins in medieval times, not exactly a populist era) were conceived and promoted because there was a popular movement among ordinary citizens who believed that such laws were absolutely critical to promoting freedom and the economic well being of their lower and middle classes, or because wealthy individuals and institutions (like corporations) wanted to possess a legal right to all profits remotely related to anything they have ever done, even the words they have uttered or printed?