Poof! Taylor Swift, Evermore Theme Park Lawsuits Dropped With No Money Exchanged

from the nevermore dept

Well, that didn't last long. You will recall that in early February a Utah theme park called Evermore filed a very stupid trademark lawsuit against Taylor Swift. At supposed issue was Swift's new album, Evermore, and the associated merchandise for it. The theme park claimed that Swift's album was driving their search engine rankings down, that people would be confused thinking she was somehow connected to the theme park, and that the park also produces some music, putting them in the same competitive marketplace as the singer. Swift's team countersued, alleging that some of the park's actors would sing and perform copyrighted music, including Swift's. It was all, frankly, very dumb.

But merely a month later, the dumbness is gone. Rolling Stone reports that both sides have dropped their lawsuits and reached an agreement, one which does not carry any monetary exchange.

A lawsuit and countersuit between Taylor Swift and Utah fantasy theme park Evermore have both been resolved with the involved parties dropping their respective suits, Rolling Stone has learned.

“As a resolution of both lawsuits, the parties will drop and dismiss their respective suits without monetary settlement,” a spokesperson for Taylor Swift said in a statement to Rolling Stone.

A fitting end, since these suits never should have been filed to begin with. The claims that Evermore made against Swift were ridiculous on their own. But to go after the singer in this manner while the park itself was potentially infringing upon her copyrighted music is hubris in the extreme. The park, which reportedly hasn't been profitable since it was created, surely could have found a better use for its cash reserves than paying a legal team for this kind of litigious adventurism.

On top of that, surely the park is now firmly on Swift's and TAS Management's radar, the latter being her rights management group.

Filed Under: copyright, evermore, taylor swift, trademark
Companies: evermore

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.

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

Utah Theme Park Sues Taylor Swift Over Album Title After Exploiting It

from the wheeee dept

It really is kind of crazy just how often Taylor Swift shows up in Techdirt's pages. One reason for this is that she seems to seesaw in the news between being the victim of and perpetrator of ridiculous intellectual property disputes. The whole "Shake It Off" thing was really silly, for instance, but so were Swift's attacks on fans and journalists over spurious trademark concerns. And, so, she doesn't neatly fit as a hero or villain. Instead, every time her name pops up in intellectual property news, the immediate question becomes, "Which side of it is she on this time?"

Today, that answer is as the victim. See, Swift recently released her album, Evermore, and applied for trademarks for the term, too. Meanwhile, the owner of a Utah theme park that goes by the same name has decided to file a trademark lawsuit against her for using the term, claiming that the album and associated merchandise are creating real confusion in the marketplace.

Federal court documents filed in the Utah District Court show Ken Bretschneider, the chief executive officer of Evermore Park in Pleasant Grove, Utah, has filed a lawsuit against Taylor Swift over her latest album, ‘Evermore.’

Documents filed on Tuesday show 12 exhibits of evidence supporting Bretschneider’s case, including Google search results for Evermore, items of clothing with branding, and two different letters from Swift’s counsel.

The suit makes some of the claims you would expect. And then a couple you wouldn't. It states that the company has poured millions into the branding of Evermore Park, including the purchase of domain names, advertising, etc. $37 million dollars, to be precise. Point of note: Bretschneider himself indicates that the park has had 140k guests since its genesis in 2018. That's roughly $265 in just branding costs per guest...ever. None of that takes into account operational costs for the park, HR, legal, etc. Unless the park charges attendees hundreds of dollars per entry, it's tough to see how this math makes any sense, but I digress.

Because the filing goes on to note that the park commissioned two original songs that it sells on Apple Music under the Evermore trademark it has and that this somehow means it's in the same general marketplace as Taylor Swift. Also, the filing complains that before Swift released her album, the park consisted of the majority of Google search results for "Evermore". Now, not so much.

Is any of this trademark infringement? Of course not! Swift's response to the suit is both good on the merits and quite thorough. It points out that the claims are baseless due to the park and Swift not being remotely in the same marketplace generally, that Swift's use of "Evermore" is actually "Taylor Swift Evermore Album" which is different as a mark, and that the claims of confusion are nonsense... but with a twist!

Second, you have not identified any evidence of actual confusion, likely because there is none. You make the conclusory statement that “Evermore’s web traffic and digital marketing have been negatively impacted since your adoption of the Evermore trademark” and claim that “[d]uring the week of December 6-12, 2020, [your client’s] website traffic experienced a dramatic departure from typical levels.” As a preliminary matter, a change in website traffic does not equate to trademark confusion. Furthermore, even if it did, any dramatic departure from typical levels that occurred from December 6 – December 9 are in no way attributable to the Swift Parties because Ms. Swift’s album name was not announced until December 10. Your attempt to fully impute an alleged decline in email traffic to Ms. Swift’s new album is similarly misguided given the reality of the industry-wide impacts COVID-19 has had on theme parks,4 particularly in winter months as temperatures decline and as case counts are soaring across the country. Lastly, and perhaps most importantly, your client’s social media posts belie this claim as they have intentionally traded off and taken advantage of this alleged attention in a transparent attempt to try to create an association between your client and ours.

Yeah, that's right, the very confusion the park is complaining of is confusion the park itself attempted to foster for publicity.

Bottom line: this is a lawsuit almost certain to go nowhere fast. Claims of confusion are silly, the markets aren't remotely the same, and the marks themselves are different. So, Swift is the victim in this chapter. We'll have to see where she lands next time.

Filed Under: evermore, ken bretschneider, taylor swift, trademark
Companies: evermore park