Taylor Swift’s IP Savvy Becomes a Liability in ‘Showgirl’ Suit

Taylor Swift’s famously vigorous protection of her intellectual property has put her in an ironic position: Her bid to protect the title of her latest album hurts her ability to use a free-speech defense in a trademark suit over “The Life of a Showgirl.”

Swift was sued Monday by a Las Vegas performer who alleges the record-breaking pop star’s album infringes the “Confessions of a Showgirl” trademark she had registered years earlier. The performer, Maren Wade, seeks monetary damages and a court order requiring Swift and her related business entities to permanently discontinue using “The Life of a Showgirl.”

Swift’s application to register a “The Life of a Showgirl” trademark—which was initially rejected due to its similarity to Wade’s mark and is now paused—essentially blocks that free-speech argument, said University of San Diego law professor Lisa Ramsey.

Album names are typically protected by something called the Rogers test, which aims to balance trademark law with free-speech concerns and allows trademarks to be used in an expressive work without the owner’s permission if it’s artistically relevant and not explicitly misleading.

But the Supreme Court limited the test in a 2023 decision over dog toys, ruling it doesn’t apply to using “another’s trademark as a trademark” without permission. The decision checked what some attorneys described as overreach and compelled some product manufacturers to face the more rigorous likelihood-of-consumer-confusion analysis rather than the simpler Rogers test.

Lady Gaga, facing a similar trademark lawsuit over her album “Mayhem,” in December defeated a bid to ban her from selling merchandise using that mark, as a federal judge ruled it’s protected by the First Amendment under the Rogers test. Lady Gaga’s IP management company Ate My Heart Inc. hadn’t applied to trademark “Mayhem.”

Swift would have to make “a very difficult argument” to the court that “The Life of a Showgirl” isn’t source-identifying, contradicting what she told the US Patent and Trademark Office when she applied to register it as a trademark, Baker Botts IP attorney Julie Albert said in an email.

To be sure, Swift will have other defenses available to her, as she can still argue there’s no likelihood of confusion between the marks, generally the crux of trademark infringement suits. She might also target the validity of the “Confessions of a Showgirl” mark and the plaintiff’s own social media posts, which appear to use “The Life of a Showgirl” references to promote herself.

“When you’re attacking someone like Taylor Swift, it’s a fact that this person has essentially unlimited resources to settle,” said Barnes & Thornburg LLP partner Caitlin Byczko, “but also to fight you.”

Swift’s Trademark Empire

Swift has built a reputation as a savvy IP owner over the the course of her 20-year, Grammy-studded career. Her IP management company, TAS Rights Management LLC, has amassed more than 160 registrations covering marks ranging from “Swiftmas” to the names of her albums, including “Lover” and “Evermore.”

“Taylor Swift is not only one of the most well-known rights holders in the world, but also a very well-known rights enforcer and a real driver of IP policy, just by the sheer volume of rights that she owns and controls and polices,” said Albert.

That’s why it made headlines last year when the PTO issued a non-final rejection of her bid to register “The Life of a Showgirl.” The agency pointed to the “Confessions of a Showgirl” trademark, registered in 2015, saying there’s a likelihood of confusion.

Wade, sued Swift, label UMG Recordings Inc., and TAS Monday in the US District Court for the Central District of California, pointing to that rejection. Wade—whose legal name is Maren Flagg—says she’s used the moniker since 2014 to write about her life for Las Vegas Weekly, later expanding the column into a touring live show.

Swift’s “The Life of a Showgirl” products include candles and drinkware, straying far from artistic expression, the suit says. It claims the scale of Swift’s infringement “threatens to erase Plaintiff from her very own brand.”

Trademark law isn’t meant to remove words from the public lexicon and stifle expressive works, said Amanda Schreyer, an IP attorney at Morse, Barnes-Brown & Pendleton PC. “Where it gets fuzzy is the use on the things, on the merch.”

Plaintiff’s Social Media Activity

Wade’s complaint argues Swift’s infringement is “textbook reverse confusion,” where the newer user’s larger commercial recognition drowns out the older user until consumers think the original is the imitation.

Swift’s attorneys can’t dispute she’s a commercial powerhouse, Albert said. “I mean, you can’t get any bigger than a Taylor Swift album release,” she said.

And the patent office’s rejection of Swift’s “Showgirl” application “really does play into the plaintiff’s hand,” Byczko added.

The harm Wade alleges might be undercut by her Instagram activity, though. Posts by Wade as far back as September feature Swift’s music and hashtags including "#thelifeofashowgirl,” "#taylorswift,” and "#swifties.”

“You’re saying that you have all this harm and you have all this concern,” Byczko said, but “she didn’t have a problem with it for the six months while it was helping amplify her.”

When asked about the posts, Wade’s attorney reiterated that she’s spent more than a decade building the Confessions of a Showgirl brand and image.

“We have great respect for Swift’s talent and success, but trademark law exists to ensure that creators at all levels can protect what they’ve built,” said Wade’s lawyer, Jaymie Parkkinen of Santa Monica, Calif., in a statement. “That’s what this case is about.”

The case is Flagg v. Swift, C.D. Cal., No. 26-cv-03354.