Official Statement on ‘This Sick Beat™,’ Trademarks, and Taylor Swift

This Sick Beat™,” a satirical parody song I released on 31 January 2015, in protest of Taylor Swift’s application to trademark several common phrases, has generated much controversy. To be clear, first and foremost, although much of the press has hastily reported otherwise, Swift has not yet legally been granted the trademarks for which she has applied. Time magazine makes this abundantly clear. Swift applied for them in October 2014, and they have yet to be approved by the US Patent and Trademark Office. My use of “this sick beat” is ergo in violation of no laws. Moreover, as I articulate in the disclaimer below, my utilization of “this sick beat” incontrovertibly falls under fair use, regardless of whether or not the phrase is officially trademarked.

This composition was not meant to be a protest against Taylor Swift. Many people are speaking of it as if it were, yet this is not the case. This song is meant as a form of protest against systemic policies that allow wealthy individuals and powerful financial entities to privatize language that is collectively owned, and to then profit off of it. “This Sick Beat™” is directed at a system, not mere individuals. Swift is simply a member of the economic elite that has the money and resources to engage in these actions. Her application to trademark “this sick beat,” among other phrases, is symptomatic of larger systemic issues, not her person.

Taylor Swift did not invent the phrase “this sick beat” (nor did she invent “‘cause we never go out of style” and “nice to meet you, where you been?”, which she has also applied to trademark). “This sick beat” is a popular idiom that Swift is hoping to commoditize, and off of which she is hoping to profit. (The New Yorker satirized this fact well in its fictional list of other common phrases trademarked by Taylor Swift, including “That Sick Beat,” “I Like This Song,” “2015,” and “Happy Birthday.”) In short, Swift is trying to make money off of a language that millions of people speak. “This sick beat,” like “this nasty groove,” or “this killer rhythm,” is not an original creative invention; it is a figure of speech. The myriad of uses of “this sick beat” in past YouTube video titles evinces this. Many of these titles were written years before Swift penned her lyrics, but the phrase may still soon be considered her intellectual property.

This problem is not limited solely to Swift. McDonald’s did not invent the phrase “I’m lovin’ it” either, nor did Nike coin “Just do it.” These are sayings. They are the products of language, the most collective invention of all. The idea that only copyright-owners can use these phrases in, to take just a few examples, t-shirts and other forms of merchandising (the primary reason Swift applied to trademark the words), recordings, digital media, downloadable multi-media, ring tones, sheet music, song books, and more, is effectively a way of controlling our language and behaviors so powerful financial entities can accrue even more wealth.

A painting of a landscape is intellectual property. It is the result of creative work by an individual. I would understand limiting the ability to sell shirts, sweaters, hats, etc. on which this image is printed exclusively to the person who created it, or to the copyright owner. A three-word, commonly used phrase is in a completely different category, however. “This sick beat” is not the result of creative work.

“Happy Birthday to You”—what may very well be the most popular song on the planet, sung every moment of every day in a great many cultures—is copyrighted. This alone is problematic, given its gargantuan cultural import. Yet it is even less absurd than trademarking “this sick beat,” because the former was written and composed by individuals (Patty and Mildred Hill). Once again, Taylor Swift did not coin “this sick beat.” Idioms like this are common property.

Language Is Part of the Commons

Language is common property. It is part of the commons. Trademarking “this sick beat” or “I’m lovin’ it” is not unlike a corporation profiting off of any other form of common property, such as land, natural resources, water, air, and more.

When I said the 1% (or, rather, the 0.001%), the bourgeoisie, “have already privatized land, water, and words. After language, they will next try to privatize air,” I was not trying to be provocative. This is not an abstract, hypothetical, academic discussion. Indigenous peoples around the world continue to struggle against the pollution, robbing, and destruction of their collectively owned lands and natural resources by powerful multinational corporations.

Water privatization is a very real and very serious issue. Apologists claim it leads to a more “efficient” use of water, but what it really does is leave low-income communities without adequate access to this most basic human need. This problem has been prevalent in Latin America, and water privatization is, as we speak, being considered in places like New Jersey and elsewhere.

Even the privatization of air is not hyperbolic. In just one example, since 2012, Chen Guangbiao, one of China’s richest people, has been selling “fresh air in soft drink cans.” Instead of taking collective actions to mitigate and eventually reverse China’s horrific air pollution, Chen’s solution is to privatize clean air.

This idea is popular among economic and political elites. Nestlé Chairman and former CEO Peter Brabeck raised controversy in 2013 for insisting that the idea that humans have a right to water is “extreme.” He likened water to a “foodstuff” and insisted that it must be sold on the market.

These are very serious concerns, and the legal, economic, and institutional logic that says that it is okay for rich individuals and corporations to claim ownership of common phrases—the cultural commons—is virtually identical to the legal, economic, and institutional logic that says that it is okay for rich individuals and corporations to claim ownership of the physical commons.

The subtleties of intellectual property rights constitute an incredibly complex subject that I do not have the space to adequately address in a short statement, but I want to make it clear that there is a crucial difference between trademarking proper nouns you yourself coined and trademarking idioms that are of collective origin. “This sick beat,” “I’m lovin’ it,” and more are not proper nouns, and were not invented by Swift or McDonald’s.

Creative Acts Are Necessarily Derivative

Here, I would also like to briefly address the fact that creative acts are necessarily derivative ones. Nothing can be created from a cultural void. Language has past origins, just as do musical and other artistic tastes. Every artist is a product of particular unique influences—not just artistic ones, but cultural, social, philosophical, etc. ones as well.

Stravinsky is often said to have quipped that “Lesser artists borrow; great artists steal.” He actually did not say this; it is a simplification of a T. S. Eliot quote (“Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different”). Yet the idea behind the purported maxim is both accurate and vital. Music, lyrics, or any other art, cannot be created in a vacuum.

The forbidding of artists, and others, to use specific phrases in commercial contexts is in effect an act of censoring of what artists are able to do. And given the legal and financial resources needed to trademark and copyright, this censorship almost invariably serves the interest of the rich.

The fact of the matter is that the degree of our freedom of speech, enshrined and guaranteed in our founding legal documents, is inversely proportional to the flexibility with which powerful individuals and institutions can trademark simple, widely used phrases. Their “freedom” to own words inevitably infringes upon our freedom to speak them.

It is for reasons like these that I am deeply critical of copyright in general. There is so, so much to address in these regards—and this present statement is devoted to addressing a particular instance of trademarking, and not copyrighting overall—but, for the sake of concision, I will simply echo what I have written on my official Peculate website:

With the advent of the internet, there is no reason to induce artificial scarcity. Record companies are stuck in an archaic, exploitative, top-down system, based on limited physical musical materials. Music now, however, can be shared with anyone on the planet with an internet connection, at virtually no cost. …

Copyright has a very messy history very few people (even artists) know about. The short of it is it was invented not to protect the rights of artists, but to protect the profits of their publishers. This trend has continued, and has gotten truer and truer, up to this very day. …

For these reasons, all of Peculate’s works are released on a non-commercial, fair use, attribution Creative Commons license. All of Peculate’s music (and musical scores of all of Peculate’s songs) are available absolutely free-of-charge.

For those interested in learning more, I strongly suggest that you go to QuestionCopyright.org/learn for information about Creative Commons and the historical origins and continued present political realities of copyright.

My Goal with “This Sick Beat™”

With this composition, I hope for people to think more critically about what property is and how it works. Intellectual property is and will always be fundamentally different than physical property—say, a table a carpenter made or a quilt someone sewed. Intellectual property is not scarce, and it is fungible. It is in infinite supply, and not even corporeal.

I hope art like this can inspire listeners to think deeply about what property truly is. Property is and has never has been an objective, neutral entity. It has always reflected the interests of the privileged propertied ruling classes in a particular society. Just over 150 years ago in the US, slaves—living, breathing human beings—were the rightful “property” of the white ruling class. For centuries, women were considered the “property” of their husbands. Formal and informal institutional punitive apparatuses were created to enforce these supposed “property rights.”

Property is the economic and legal mechanism through which the ruling class exercises its power. It is for this reason that we must be diligent and not allow our inalienable rights to be taken from us in the guise of defending “property rights.” The only reason these past heinous injustices were overcome is because average people spoke out against them.

I absolutely believe that workers should benefit from the fruit of their labor. This is what leads me to be a leftist and to challenge an economic system in which the 0.001%, the bourgeoisie, profits off of—that is to say exploits—the labor of the 99.999%, the proletariat, essentially stealing what economists refer to as the “surplus value” of workers’ labor. But phrases like “this sick beat” are not the fruit of Swift’s “labor”; once again, they are part of the linguistic and cultural commons.

I will conclude with some thoughts from scientist and philosopher Peter Kropotkin, as articulated in chapter 1, part II of his 1892 opus The Conquest of Bread.

Millions of human beings have laboured to create this civilization on which we pride ourselves to-day. Other millions, scattered through the globe, labour to maintain it. Without them nothing would be left in fifty years but ruins.

There is not even a thought, or an invention, which is not common property, born of the past and the present. Thousands of inventors, known and unknown, who have died in poverty, have co-operated in the invention of each of these machines which embody the genius of man.

Thousands of writers, of poets, of scholars, have laboured to increase knowledge, to dissipate error, and to create that atmosphere of scientific thought, without which the marvels of our century could never have appeared. And these thousands of philosophers, of poets, of scholars, of inventors, have themselves been supported by the labour of past centuries. They have been upheld and nourished through life, both physically and mentally, by legions of workers and craftsmen of all sorts. They have drawn their motive force from the environment. …

Every machine has had the same history—a long record of sleepless nights and of poverty, of disillusions and of joys, of partial improvements discovered by several generations of nameless workers, who have added to the original invention these little nothings, without which the most fertile idea would remain fruitless. More than that: every new invention is a synthesis, the resultant of innumerable inventions which have preceded it in the vast field of mechanics and industry.

Science and industry, knowledge and application, discovery and practical realization leading to new discoveries, cunning of brain and of hand, toil of mind and muscle—all work together. Each discovery, each advance, each increase in the sum of human riches, owes its being to the physical and mental travail of the past and the present.

By what right then can any one whatever appropriate the least morsel of this immense whole and say—This is mine, not yours?

DISCLAIMER:

Although Taylor Swift’s applications to trademark “this sick beat” and other phrases have not yet been approved by the US Patent and Trademark Office, I also want to make it clear that, even if they had already been approved, my use of “this sick beat” unequivocally falls under fair use. I did not impetuously write this song without any knowledge of potential legal consequences. “This Sick Beat™,” in both musical and video form, constitutes fair use under US copyright law, in the words of attorney Patrick McKay at FairUseTube, “because it is (1) non-commercial, (2) transformative in nature, (3) uses no more of the original work than necessary for the video’s purpose, and (4) does not compete with the original work [a single line in a song of a different title] and could have no negative effect on its market.”

Title 17, chapter 1 of the U.S. Code, “Limitations on exclusive rights: Fair use,” dictates that a work that is made “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This is especially true when works are made for nonprofit purposes, as is unquestionably the case with “This Sick Beat™.”

No money whatsoever is being or can be made from this song. I demonetized my YouTube channel before posting this video, and the song itself is not available for purchase anywhere—it can only be downloaded, and only for free, at my Bandcamp and Souncloud accounts. I will not upload this song onto iTunes or any other paid service. It will not be available to be purchased; it will only be available for free. It is strictly non-commercial.

Moreover, as American University’s Center for Media and Social Impact (CMSI) writes in regards to “Commenting on or critiquing of copyrighted material,”

Video makers [and musicians and other artists] have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary. Commentary may be explicit (as might be achieved, for example, by the addition of narration) or implicit (accomplished by means of recasting or recontextualizing the original). In the case of negative commentary, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant.