International Fans Crafting Fan Merchandise for U.S. Musicians: A Trademark Infringement Danger Zone

In the early 2010s, the term “fandom” gained popularity among teenagers who were deeply devoted to their favorite musicians.¹ The term “fandom” refers to communities of fans who come together through social media to express their shared admiration for a particular artist.² When individuals unite to celebrate their mutual love for a musician, a genuine sense of connection and community is established.³ Through discussions about their shared passion for the artist, they often discover common interests and experiences that go beyond the music, fostering authentic friendships.⁴

The strong bonds that develop within these fandoms, coupled with their unwavering devotion to the musician, serve as the cornerstone of immense pride for the members.⁵ Consequently, many individuals within these fandoms take pride in wearing fan merchandise as a visible symbol of their shared membership.⁶ An even more significant trend that has emerged is that fans are taking the initiative to create their own fan merchandise.⁷ Designing fan merchandise enables devotees not only to display their pride in being part of a fandom but also to demonstrate their loyalty to the musician they deeply admire.⁸ For example, the Taylor Swift fandom, known as “Swifties,” is renowned for crafting homemade fan merchandise such as friendship bracelets and t-shirts for the artist’s concerts.⁹ This DIY approach to creating fan merchandise allows fans to express their creativity and passion while showcasing their support for their beloved musician.¹⁰

While creating fan merchandise centered around their favorite musicians can be an enjoyable activity for fans, it can also lead to significant legal issues.¹¹ Many musicians take proactive steps to federally register their song titles, logos, and even their names with the United States Patent & Trademark Office to protect their intellectual property rights.¹² These trademarks are often used on official merchandise sold by the musicians and in various promotional materials.¹³ Therefore, when fans incorporate these logos, titles, or other protected elements into the merchandise they create, musicians may view it as trademark infringement and may feel compelled to pursue legal action against these fans.¹⁴ This situation can be particularly challenging for fans of U.S. musicians who reside outside the United States.

American musicians like Taylor Swift and Beyoncé enjoy widespread popularity, captivating fans globally who proudly identify with their respective “fandoms.”¹⁵ These devoted followers who that live outside the U.S. also express their allegiance by creating and wearing fan merchandise.¹⁶ Thus, it is possible that U.S. musicians may not hesitate to pursue legal action against trademark infringement, even against fans that reside in different countries.¹⁷ To navigate this, musicians must first establish infringement, consider international trademark registrations, comprehend local intellectual property laws, and engage legal counsel with expertise in both intellectual property and international litigation.¹⁸ By filing a lawsuit in the fan’s country, enforcing judgments, and collaborating with local legal authorities, musicians are attempting to protect their brand and uphold trademark rights on an international scale.¹⁹

While this trend has not become widespread, there are indications that it could gain momentum. Notably, U.S. musicians have demonstrated a willingness to take legal action against fans within the U.S., suggesting a potential extension of their legal reach beyond national borders.²⁰ A notable example occurred in 2015 when Taylor Swift sued Etsy for permitting the sale of merchandise featuring the trademarked phrase “Shake it Off.”²¹ Similarly, in 2014, Beyoncé initiated a lawsuit against a Texas-based company named “Feyonce,” established by her fans, as the merchandise produced by the company contained Beyoncé’s trademarks and caused customer confusion.²²

Furthermore, a compelling piece of evidence stems from the broader business landscape, where numerous brands pursue legal remedies against individuals in other countries infringing upon their trademark rights.²³ This may suggest a precedent that musicians might readily follow in safeguarding their brands. For instance, Louis Vuitton took legal action against individuals in China for trademark infringement.²⁴ Instances like these can provide examples for musicians to potentially shift their global approach to how they protect their trademarks.

The potential adoption of this practice raises significant concerns for both international fans and musicians. As highlighted earlier, fans engage in creating fan merchandise as a tangible expression of their love for their favorite musicians and to proudly display their affiliation with their respective “fandoms.”²⁵ Initiating legal action against these enthusiasts not only risks fostering a negative perception of the musician but also jeopardizes the fandom, a vital aspect of these enthusiasts’ lives, intimately tied to their passion for the artist.²⁶

“Fandoms” play a crucial role in fans’ lives, extending beyond a shared appreciation for the musician to the formation of lasting friendships within the community.²⁷ Legal disputes have the potential to disrupt these meaningful connections, resulting in a loss that goes beyond monetary considerations.²⁸ This is due to the fact that legal action can lead to a tarnished international reputation for the musician, as fans may perceive legal interventions as pretentious and disconnected.²⁹ Cultural disparities may further exacerbate the impact, with other countries potentially interpreting such legal measures more seriously, amplifying the risk of reputational damage and, consequently, a decline in the musician’s revenue.

Musicians contemplating legal action against a fan residing outside the U.S. should carefully weigh these potential drawbacks. A proactive step in mitigating issues is to establish clear communication of trademark policies on an international scale. This can be achieved by incorporating a “Trademark Policies” tab on their official website and utilizing popular social media platforms like TikTok and Instagram to disseminate informative videos about these policies. Leveraging these globally reaching platforms ensures that the information reaches fans worldwide, fostering a better understanding of the musicians’ trademark guidelines.

In conclusion, the intricate dynamics of fandoms, their creative expressions through fan merchandise, and the potential legal ramifications present a complex landscape for musicians to navigate. The pride and connections formed within these communities underscore the significance of fandoms in fans’ lives, transcending mere appreciation for the artist. However, as musicians increasingly consider legal action against fans, particularly those residing outside the U.S., there emerges a delicate balance between protecting intellectual property and preserving the positive relationships cultivated within fandoms. The notable instances of legal disputes involving major artists like Taylor Swift and Beyoncé suggest a potential global shift in trademark protection strategies. The implications of such actions, however, extend beyond monetary considerations, posing a risk to the musicians’ international reputation and fan relationships. To address these challenges, musicians are encouraged to proactively communicate trademark policies on a global scale, utilizing online platforms to ensure widespread awareness. This approach, grounded in transparency and education, may foster a harmonious coexistence between artists and their devoted global fan base.

Gabriella Fernandez is a Second Year Law Student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts Entertainment Law Journal. Gabriella has an interest in Film, Music, and Fashion Law.