Taylor Swift, Evermore Theme Park Dispute Escalates As Swift's Team Countersues

from the swift-response dept

In early February, we discussed an extremely dumb lawsuit brought by a theme park in Utah called Evermore against Taylor Swift, who recently released an album called Evermore. The whole thing is buckets of stupid, with the Evermore theme park claiming that because it released a couple of songs on Apple Music, this somehow puts them in the same marketplace as Taylor Swift. Then there were complaints that Swift's album pushed search results down for the theme park, which doesn't trademark infringement make.

Swift's response dismantled the claims the theme park made, but when on to note that Evermore theme park had actually gone on social media and responded to messages about Swift's album trying to associate the park with the album. In other words, the only potential for public confusion appears to have been generated by the theme park itself.

And now this is going to escalate further as Swift's management company has countersued the park for the unauthorized use of Swift's music.

Now, her company TAS Rights Management has countersued, alleging that the park played Swift songs on its grounds “without authorisation or license agreement”. They allege that the park “blatantly ignored the numerous notices from [US performance rights organisation] BMI and opted instead to continue to benefit from the free and unauthorised public performance” of three Swift songs.

Specifically, TAS alleges that one of the attractions of the park is a section where several park actors perform and sing copyrighted music, including a couple of Swift songs. From the filing:

At a section of Evermore Park known as “the Burrows,” two actors regularly and routinely perform copyrighted songs, including the Works at issue in this action, to large crowds of patrons at Evermore Park. These unlawful musical performances are marketed as a central attraction of Evermore Park. For instance, Evermore Park’s website advertises that visitors can “[c]reate fanciful music” with Park actors and describes one of the Park’s main activities as “Musical Character Performances.”

Also noted in the filing, and perhaps most damning, is that the Evermore park reached out to BMI once this lawsuit became imminent and attempted to get a retroactive license to cover these past performances of copyrighted works. Combined with exhibits brought by Swift's team detailing the several times that BMI has informed Evermore that its use of copyrighted songs was infringing, all of which were ignored by the park, the suit makes the case that the park's infringement was willful. Frankly, it's hard to formulate much of an argument against that assertion.

Which makes it useful to reiterate that all of this appears to be a result of Evermore theme park first filing a ridiculous trademark lawsuit of its own. In other words, they decided to poke the hornet's nest and are now getting stung.

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Filed Under: copyright, evermore, licensing, taylor swift, theme park, trademark
Companies: evermore, tas rights management


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  • icon
    That One Guy (profile), 1 Mar 2021 @ 6:55pm

    Should have left well enough alone...

    Nothing like suing a famous singer claiming trademark infringement and potential customer confusion only to have them hit back hard by pointing out that the only confusion likely to be in play is due to your own actions(twice over now with the playing of her music at the park) and damning accusations backed by evidence that you've been using their music for commercial gain without paying for it.

    reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 1 Mar 2021 @ 8:40pm

    Man.. I hate it when I have to side with Hollywood, but these complete morons with huge cojones are begging to be put out of business.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 1 Mar 2021 @ 10:47pm

      Re:

      "I hate it when I have to side with Hollywood,"

      Good news - this is about the music industry, not Hollywood, although there is some small overlap with parent corporations.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2021 @ 3:48am

      Re:

      "I hate it when I have to side with Hollywood"

      I do not understand, why do you dislike agreement with "hollywood", and what does hollywood even mean in this context.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 2 Mar 2021 @ 8:03am

        Re: Re:

        In this context "Hollywood" means I am virtue signaling hatred of of a perceived cultural evil and am exposing my understanding of that evil is thimble deep.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Mar 2021 @ 9:22am

          Re: Re: Re:

          To play Devil's Advocate... Swift lives in Hollywood I believe, and has acted in Disney movies.

          Of course, while she was represented by BMI, TAS Holdings was set up specifically to methodically peel back the rights she gave away to movie and audio studios so that she could control them herself.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 2 Mar 2021 @ 11:18pm

            Re: Re: Re: Re:

            "Swift lives in Hollywood I believe"

            I don't think it was her postal address he was complaining about.

            He was just using the lazy shorthand of "Hollywood". While that's already a lazy enough shorthand to refer to movies (given the huge amount of them that are not made by the 6 major US studios to which the term would normally apply), it's extraordinarily lazy and misleading when people attempt to apply it to the entertainment industry as a whole.

            reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 2 Mar 2021 @ 2:05am

    adds trademark punishment to the list of things Copyright can do

    Now about those patents...

    reply to this | link to this | view in chronology ]

  • icon
    Samuel Abram (profile), 2 Mar 2021 @ 4:30am

    BMI

    *sees BMI in the post*

    ๐Ÿ‘€๐Ÿ‘€ Uh-oh, did my performing rights organization do anything wrong? ๐Ÿ‘€๐Ÿ‘€

    *goes on to read post*

    Oh, phew! They didn't screw up and act maximalist like ASCAP. I'm glad I signed on with them! I guess all of you see why as well; I see them as the lesser of two (now three, if you include SESAC) evils.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Mar 2021 @ 9:25am

      Re: BMI

      I have always appreciated that BMI stands up for all their performers, not just for the big publishing houses. Their licensing agreements have generally been reasonable as well (having both used BMI and paid public performance fees to them)

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 2 Mar 2021 @ 5:02am

    I think I've seen this one, they lose the suit, change their name to Max Power then piss off Ed Begley Jr so have to change it back.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 2 Mar 2021 @ 6:26am

    if they lose, they just have to stick an "N" at the beginning of all of their signs.

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 2 Mar 2021 @ 7:57am

    "mandated fees"

    What are "federally mandated license fees"??

    E

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 2 Mar 2021 @ 8:20am

      Re: "mandated fees"

      Federal copyright law requires a licence fee be paid to "publicly perform" a given work covered by copyright. In the case of music, there are 2 specific fees owed - the composition copyright which needs to be paid to the owner of the rights for writing the music, and the Performance fee, paid to the owner of the specific recording being used.

      Practically, you pay a bulk licence to a Performing Rights Organization (PRO), of which ASCAP and BMI are the major US orgs, and they are supposed to pay the rights holders in question. Taylor swift's music is licensed from BMI.

      These licensing fees are not explicitly required by law and some might consider the phrasing "Federally Mandated Licensing fees" a misnomer. However, the terms comes from a legal brief, made by a lawyer. So I pose that the statement Federally mandated modifies Licensing.

      So federal law mandates licensing, and they have not paid fees the rightsholder requires for federally mandated licensing. That's what Federally Mandated License fees are: Fees required to issue a federally mandated license for the public performance of a work covered by copyright.

      Also, when you quote the underlying legal brief and use a phrase not used in the commentary article you might want to clarify where you get it from.

      reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 2 Mar 2021 @ 6:05pm

        Re: Re: "mandated fees"

        Also, when you quote the underlying legal brief and use a phrase not used in the commentary article you might want to clarify where you get it from.

        The filing is included in the article (in this very page). Item #1 summary, paragraph 2 says mandated licensing fee. I'm not sure what other reference is needed seeing as it's right there.

        However, you now know "If you read the original article and see the embedded filing and see that first section - summary - and go paragraph number two" you'll see it.

        If I got it from a different website or the filing directly on RECAP or whatever... I would have posted that link.

        Thanks for explaining that "mandating" means one thing to me "must be done" and another to lawyers (not sure what).

        E

        reply to this | link to this | view in chronology ]

  • icon
    Michael Barclay (profile), 2 Mar 2021 @ 8:14am

    Taylor Swift already wrote a song lyric to explain this

    Taylor Swift once wrote: "There is nothing I do better than revenge."
    Evermore Park should have figured this out before filing its trademark suit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Mar 2021 @ 5:54pm

    Quoth the Taylor, "Evermore..."

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 3 Mar 2021 @ 1:45am

    "Ooh, look what you made me do
    Look what you made me do
    Look what you just made me do
    Look what you just made me do

    The world moves on, another day another drama, drama
    But not for me, not for me, all I think about is karma
    And then the world moves on, but one thing's for sure
    Maybe I got mine, but you'll all get yours"

    • What Swift might have been singing as she files the countersuit

    reply to this | link to this | view in chronology ]


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