When Taylor Swift heads to the studio to record her next single, she’ll be able to claim legal ownership of the new song thanks to the folks at the U.S. Copyright Office. But did you know she can also claim ownership of common phrases buried in the lyrics of her songs? In 2014, she did just that – trademarking lyrics like “This sick beat” and “Nice to meet you, where you been?” from her album 1989. Under the terms of the trademark agreement, companies must obtain a license to include these phrases on everything from temporary tattoos to typewriters.
Taylor’s trademarks might seem a little unreasonable, but they’re hardly the most extreme case of people laying claim to common, everyday things. In 1988, Harvard College patented the genome of a mouse bred to study cancer treatments. More recently, the Supreme Court issued a ruling prohibiting companies from patenting human genes.
The fact that the SCOTUS even had to make this ruling reveals a valuable lesson about the current state of copyright law in the United States: people will try to copyright, patent, and trademark just about anything under the sun.
How Did We Get Here?
It all started with the U.S. Constitution.
Article 1, section 8 of the Constitution establishes the power of Congress to grant copyrights and patents. In the country’s early years, this process was pretty straightforward. An engineer might patent a new invention, or an author might copyright their latest novel. It would be another century before U.S. copyright law really got interesting.
In the late 19th century, the concept of intellectual property started to pervade the public consciousness. This notion that people can own not only things but also ideas, has had a profound and lasting impact on the way we think about copyrights. Once people started talking about intellectual property, it quickly became clear our early copyright laws were woefully inadequate. Since then, there’s been an ongoing race to draft legislation that can keep up with society’s ever-evolving ideas of ownership and intellectual property.
If the laws governing intellectual property seem vague and unsatisfying at times, it’s because they’re still something of a work in progress. Today, copyright law in the U.S. is governed by the Copyright Act of 1976. The current iteration of the Copyright Act is certainly much better than it used to be, but it’s still far from perfect.
In recent years, streaming services like Spotify and Pandora have challenged ideas about licensing and royalty payments that are remnants of the early days of recorded music. In 2016, Spotify was tagged with a $150 million class action lawsuit from musicians who alleged the company was streaming music without obtaining the proper licenses.
As the internet has made media distribution increasingly complex and diverse, some people in the music and film industries have called for a complete overhaul of the Copyright Act. After all, in the immortal words of T-Swift, “Band-Aids don’t fix bullet holes.”
In 2013, the head of the U.S. Copyright Office even tried to convince Congress to revise the country’s copyright laws, but unfortunately this task is easier said than done. The last overhaul of U.S. copyright law took about two decades to complete. Likewise, many lawmakers are understandably a little gun-shy about starting the whole process over again.
Outmoded copyright laws don’t just hurt famous musicians, movie producers, and inventors.
They can take a financial toll on small businesses as well. Plenty of mom and pop shops have lost thousands of dollars to lawsuits filed by Getty images over the unlicensed use of stock photos, for example.
In many cases, these are honest mistakes. The owner of a café might find a picture of a cup of coffee in a Google image search, add it to their website, and then get a letter from Getty Images months later telling them they owe $750 for the unlicensed use of the image. Ideally, the Copyright Act should not only protect the intellectual property of copyright holders, but also prevent companies from abusing copy right laws for financial gain. It’s a delicate balancing act legislators are still trying to work out.
When the Copyright Act of 1976 was passed, it resolved many of the intellectual property issues that sprung up during the development of TV and radio. Soon, we’ll need a new law to resolve issues pertaining to other more recent technological developments like the internet and genetic engineering.
If history has taught us anything, though, it’s that our ideas will always outpace the laws that protect them.
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