Can Artists Stop Brands from Using Their Lyrics?

Earlier this month, "Headphanie," a re-labeled, lavender colored Hennessey imposter, hit shelves in select Florida liquor stores. It instantly drew attention from the Twittersphere: Fans of Young M.A. exposed the group behind the product, a Florida-based clothing brand called the Lilac Company. Twitter users discovered a photo, which was later deleted, of the apparent proprietors from their social media pages: four smug-looking, well-dressed, college-aged white boys, grasping the bottles and lounging underneath a block of purple text that read "OOOUUU." Social media immediately roasted the unauthorized remake as an example of cultural exploitation. Cam'ron even chimed in, calling the group "Culture Vultures" on Instagram and asking the group to "Give [Young M.A.] her check." For the unfamiliar, perhaps the most climactic verse of Young M.A.'s summer breakout banger "Ooouuu" is the punchy, pause worthy line "you call her Stephanie? I call her HEADPHANIE." And what better to parody than M.A.'s drink of choice noted throughout the song? Apart from its rhythmic catchiness, the nickname gingerly objectifies women, so the fact that it was repurposed by bunch of bros from South Florida is not without significance in the backlash which ensued.

Within a day or so, Young M.A. and Hennessy released statements confirming that they were not associated with the product and enlisted their attorneys to send cease and desist letters to Lilac Company. Lilac promptly pulled the bottles from circulation and erased any evidence of their creation from their website and social media platforms. The group's track record of respecting artists' brands and intellectual property is questionable; in March of this year they posted a shirt on Instagram that objectively reproduced the cover of Kanye West's record, the Life of Pablo, on an orange tee and another T-shirt which brandishes the Nike Swoosh logo underneath a block of text that reads simply "SUE ME." At the same time, there's some element of what they're doing that could be chalked up to enthusiasm for the source material: They responded to critics, in since-deleted social media posts, saying that Headphanie was "an art idea" and that "y'all are crazy thinking we're banking off this." So how far do an artist's rights to protect phrases they created extend? Can they and should they stop brands from using their lyrics?

In the case of Headphanie, among obvious regulatory issues invoked by relabeling a product that is meant to be ingested by humans, there were other brand related assumptions made by consumers that are inherently unfair. For example, following the emergence of the Headphanie product on the internet, some questioned whether Young M.A. was involved with or created the product, and many expressed a gut feeling that she should be compensated for the use of her phrase. Since there are differences between the protection that can be offered by copyright, trademark, and persona rights, it is important for artists to consider all three. On a practical level, since "Headphanie" is just one word in her song, copyright protection—which is designed to protect full "works of authorship," according to the US Copyright Office—could fall short of offering her legitimate recourse. A trademark, meanwhile, "protects words, phrases, symbols, or designs" associated with the goods or services of their creator. The false association that Young M.A.'s fans were making may have been a key point influencing Lilac's decision to pull the product. After the ordeal, she applied for a trademark for the term Headphanie, to cover "Hats; Sweatshirts; Short-sleeved or long-sleeved t-shirts."

Young M.A. isn't the first artist to be left behind when her lyrics are turned into a lucrative product with viral appeal. Beyoncé is currently embroiled in a trademark dispute over a range of engagement-themed products branded FEYONCÉ that, in Bey's opinion, were intended to call to mind Beyoncé and her famous song, "Single Ladies (Put a Ring on It)." Since this mark uses part of her name, which is quickly recognizable among the consuming public, Beyoncé probably makes a stronger case against Feyoncé than situations where mere lyrics are appropriated.

Earlier this year, Lil Jon fired off a cease and desist to Blue & Cream, a high-end Hamptons boutique, who had been selling a hip flask emblazoned with his lyric "Turn Down for What." The owner of the Hamptons shop agreed to stop selling the flasks, but only after claiming that Lil Jon was trying to "bully" him; suggesting that there wasn't a true legal basis for Jon to stop him. At that point, Lil Jon already had a trademark application in progress which covered similar goods. But while he certainly had legitimate support in law for ownership, the shop owner makes a point: When a simple phrase takes on a new identity in the cultural framework somewhat independent of the work of artist themselves, should regular people be precluded from using it?

In 2014, seemingly in anticipation of this kind of issue, Taylor Swift became one of the first artists to file trademark applications for a handful of her lyrics; including "Party like it's 1989," "'Cause we never go out of style," "Could show you incredible things," and "This sick beat." She filed applications for "This sick beat" in connection 16 different classes of goods and services, which cover a wide range of, largely unconnected, products, including bed sheets, jewelry, bags, toiletries and books. Some of those applications have been abandoned, but not before they were used as the basis to send takedown notices to swaths of creators of Taylor Swift-inspired products on Etsy. The takedown notices cited trademark infringement and in some cases, a violation of Taylor's persona rights. The demand letters incited a backlash among Etsy sellers, who felt like she was going a step too far; she had inspired them to create, and now she was suppressing their creative capabilities. The territory was sensitive, Taylor may have wanted to make sure that her brand was consistent and cohesive, but many of her fans saw this as a money grab in a space where they weren't doing any harm. In fact, it was quite the opposite, they saw themselves as ambassadors of her brand, encouraging other fans to be enthusiastic about her as well.

In some cases, artists might find it beneficial to approach fan-made merch with that mindset, as the challenges or a reputational risk can outweigh the efficacy of going after an offensive product. When Kanye West heard that some of his fans had begun to make and sell their own bootleg PABLO merch in advance of his pop-up in NYC, he was faced with a conundrum. On one hand, the pieces being sold highly resembled what he was selling, but, on the other, their simplicity meant that he would have had to approach the makers aggressively to stop them. Instead of firing off a cease and desist, he opted for a more affable position, replacing some of his actual merch in his pop up with the bootleg pieces. Since artists risk alienating fans in a space where partnering could be the more understanding course of action, there is always a balancing act to undertake.

Ultimately, there is no particularly cut and dry solution for artists faced with companies or individuals trying to market products based around their lyrics. Protection for song titles or fragments of lyrics can be difficult to maintain in court. This is because copyright protection is only offered to works which ascend to a level of originality not often demonstrated in a combination of a few words or a phrase. Trademark protection can be afforded to shorter phrases and even single words, but the application process is more burdensome and requires tangible proof that the mark is used in connection with the goods or services specified. Not many artists go as far as to file trademark applications for lyrics or song titles; the process is expensive and the cost of filing many applications for many lyrics and titles would be extortionate. Registered trademark protection is often only sought for lyrics or song titles by artists with more established merchandising structures and, also, money. However, if fans are confused about an artist's association with a product, the connection they perceive can be the basis for successful legal action. After all, artists can always show up in court armed with some other Young M.A. lyrics to make their case: "Ignore the hate, ignore the fake, ignore the funny shit."

Lead photo: Screenshot of "Headphanie" from Lilac Company's promotional video

Jessica Meiselman is a lawyer and writer based in New York. Follow her on Twitter.