Music is a demanding form of expression.
For an artist to communicate through lyrics in a song, the artist must conform his or her ideas within a time signature and in rhythm. When artists are limited in the number of syllables to express an idea or tell a story, they need to find shorthand ways to communicate. For many artists, they find the shorthand that they need to convey ideas, evoke emotions, and connect with their audiences in brands.
For example, in 1966, Wilson Pickett told us he bought his paramour Sally a new 1965 Ford Mustang. Mr. Pickett’s audience would have instantly known this was a flashy gift at the time, which moved fast and looked good. Mr. Pickett was able to clearly communicate the situation through the use of the MUSTANG brand and could easily imbue Sally with the car’s characteristics in the song’s hook when he called her Mustang Sally.
Using Brands to Induce Nostalgia for Times Gone By
Mr. Pickett is far from the only artist to have used brand names as shorthand to communicate specific ideas and characteristics in his or her music. In 1971, Don McLean sang about the day that the music died in the song “American Pie.” He sang “Bye, bye, Miss American Pie, drove my Chevy to the levee but the levee was dry.” In his song about Americana, Mr. McLean tied together nostalgic images of “good old boys” and apple pie with the American car brand CHEVROLET.
In 2016, Keith Urban embraced Mr. McLean’s use of brands to conjure nostalgic imagery in a song that even includes JOHN DEERE in the title. Mr. Urban’s song starts: “I’m a 45 spinning on an old Victorola; I’m a two-strike swinger, I’m a Pepsi-Cola; I’m a blue jean quarterback saying ‘I love you’ to the prom queen; In a Chevy.”
“Mr. Urban, like Mr. McLean and countless artists before him, is able to evoke memories and feelings of nostalgia from his target audience by listing brands from the audience’s youth.”
Mr. Urban’s song, in which he claims to have learned everything he needs to know in his youth, includes other brands such as TEXACO and GIBSON guitars. Mr. Urban, like Mr. McLean and countless artists before him, is succinctly able to evoke memories and feelings of nostalgia from his target audience by essentially listing brands from the audience’s youth.
Buying into Brands
But evoking memories is far from the only use that artists have found for inserting brand names into the lyrics of their songs.
Often artists use a luxury or aspirational brand to suggest that they are worthy of their audience’s envy. In “Still Fly,” the Big Tymers, like Mr. Urban, essentially list aspirational brands to show the level of their wealth. They employ marks of imported goods such as GUCCI, PRADA, COOGI, and LEXUS, showing their ability to afford these luxury brands. In case there was any doubt about their intent in naming these brands, another song from the duo states that they leave the showroom sticker on the Bentley to show off the price of the car.
It Might Not All Be Good
When artists use brands as a shorthand way to communicate using the positive attributes of the brand, it can be a welcome sign to brand owners of the penetration of their brand in the marketplace, not to mention free advertising. Unfortunately for brand owners, however, this is not the only way artists use brands. Just as they can be used to communicate positive connotations, artists can use them as shorthand for less than positive subtexts. In “Redneck Woman,” the artist employs the WAL-MART brand to draw on its reputation as a discount retailer. While this is not inherently negative, the brand owner may not appreciate the artist tying the brand directly to the shopping habits of a person who brags about lacking sophistication.
“What can a brand owner do if it does not like the way its mark is used in a song? The answer is probably not much.”
Conversely, some brands are associated with products for which views have evolved over time. Cigarettes, with the revelations about the health consequences of their prolonged use, are just such a product. A product once viewed as positive or even “cool” is now predominantly viewed negatively. When the Randy Rogers Band sang a song entitled “Things I Need to Quit,” the listener would not be surprised to hear the first line mention an “ashtray full of Marlboro reds.”
So what can a brand owner do if it does not like the way its mark is used in a song?
The answer is probably not much.
The toy manufacturer Mattel sued a record label over the song “Barbie Girl,” claiming that the song’s title constituted trademark infringement, and its lyrics, which lampoon the doll’s image and mocks the cultural values associated with the doll, diluted the BARBIE mark. The brand owner lost on the claims at the trial court. On appeal, the Ninth Circuit Court of Appeals, with jurisdiction over much of the western United States, affirmed. In its opinion, the court explained, “were we to ignore the expressive value that some marks assume, trademark rights would grow to encroach upon the zone protected by the First Amendment. … Simply put, the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900 (9th Cir. 2002). As a result, the court found no infringement.
As to dilution, the court found the song met the statutory elements for dilution under the Lanham Act. But it also found the song to fit within the exclusion for “noncommercial use of a mark” codified at 15 U.S.C. Section 1125(c)(3)(C) because the song did not use the BARBIE mark in a purely commercial sense. As a result, the court found the use of the mark to be protected by the First Amendment.
Familiarity with Brands
Artists have long understood and employed marks in these shorthand ways, such that they have become part of the zeitgeist within certain genres. Such marks become so famous to the intended audience of music that artists know they can use only part of the mark, or a nickname for products sold under the mark, and their audience will still understand the reference. In 1964, the Beach Boys told the story of a young woman who borrowed her father’s car and drove it all around town. They sang she would have “fun, fun, fun, ‘til her daddy takes the T-Bird away.” The band did not clarify it was a THUNDERBIRD brand car, nor did it have to. Ford had been making the model for nine years, and it suffused popular culture.
“Brands represent such an aspirational achievement for the song’s intended audience that the artist knows the references will be understood.”
More recently, in the song, “Drop It Like It’s Hot,” the artist Snoop Dogg proclaims in the hook, “I got the Rolly on my arm and I’m pouring Chandon.” Nowhere in the song does he explain that “Rolly” refers to a ROLEX brand watch or that “Chandon” refers to MOET & CHANDON brand champagne. In both cases, the brands represent such an aspirational achievement for the song’s intended audience that the artist knows the references will be understood. It could even be argued that the artist does not intend for anyone who does not understand the reference to be a consumer of the music.
While brand owners hearing these alterations of their marks should take note (and send a letter on the proper use of their marks!), they should also take comfort in knowing that their mark is famous enough for a wide audience to understand the reference.
Imagery Tied to Use of Products
Sometimes products sold under brands have such indelible physical characteristics that an artist can easily use the mark to create clear imagery. In Outkast’s song “Hey Ya,” the artist instructs the audience to “shake it like a Polaroid picture.” This simple line conjures clear images of shaking a picture from a POLAROID brand camera to help the image develop faster. Or in 1983, when the band Soft Cell sang to throw people away “like Kleenex,” their audience could clearly picture using KLEENEX brand tissue paper and then quickly throwing the used tissue in the garbage.
The BAND-AID brand regularly appears in songs, apart from its own advertising jingles, due to its ubiquitous use and familiarity. Artists know almost everyone is familiar with BAND-AID brand bandages as a quick fix for small injuries. As a result, Taylor Swift can sing that “Band-Aids don’t fix bullet holes” and Talib Kweli can brush off scars as something Band-Aids will cover with the confidence that their audiences will understand the extent of the wounds.
The fact is that brands permeate consumers’ lives to such an extent that artists understand they can employ them to aid in expressing just about any idea in their music. Whether it is evoking the audience’s feelings towards brands for any number of reasons or using other associations with brands to clearly communicate how an action is taken, artists know that they can use brands without sounding like a commercial.
This article was first published by the International Trademark Association on inta.org.