Full disclosure: Taylor Swift and I are the same age. This is a fact that has left me to wonder at (1) why I oftentimes felt “too old” for her music and (2) the colossal magnitude of her success.
Taylor Swift has eight number-one hits. She’s 31st on the list of best-selling music artists of all time and finds herself in-between Bob Segar (#32) and Eminem (#30). She is 25th on the Forbes list of highest-paid celebrities—this time sandwiched by Kevin Durant (#24) and Tiger Woods (#26). The resulting alchemy of her talent and achievements: Swift’s estimated worth is $365 million.
All of this begs the question, why would anyone try to take on Taylor Swift in court? Specifically, a start-up theme park in Pleasant Grove?
Evermore Park, LLC v. Taylor Swift and TAS
Evermore Park officially opened its doors in 2018, more than two years before Swift released her album evermore. The park’s complaint against Swift says that an estimated $37 million has been poured into the “creation and promotion of Evermore Park and the EVERMORE trademark,” much of that the personal money of the CEO and Founder Ken Bretschneider. Whether Swift’s team was aware of the park or not, Bretschneider believes her use of the phrase “evermore” to title a record has hobbled that effort.
I visited Evermore Park before the pandemic. Lively actors and detailed, medieval set design work in tandem to immerse visitors in an atmosphere of fantasy, magic and mystery. The park experience provides a little something for everyone, depending on your tolerance for interacting with costumed improvisers. For instance, I spent most of my time drinking hot cider and target shooting with a bow and arrow. This was nothing like my experience listening to the album evermore. I know which “evermore” I would create, given the choice, and consequently forgo Taylor Swift-levels of money and fame. Then again, I am a big ol’ nerd. If you’re like me, you’ve dreamed of living out a real-life version of a fantasy RPG since you were a kid, and there’s only one Evermore that lets you do that. A place for us who would choose lore over folklore.
Related Story: Find Fantasy at Evermore Park
At face value, the crux of the Evermore Park lawsuit seems obvious. The park’s creators have a trademark on the name “evermore,” which should mean Swift doesn’t get to use it, right? Well, not exactly. A quick search of the United States Patent and Trademark Office’s database shows dozens of evermore-related trademark, from T-Swift’s album to jewelry makers and dried floral arrangements.
I talked to Craig Buschmann, a Salt Lake City attorney who litigates intellectual property, trademark and copyright cases. As he explains it, the core misconception about a trademark is that it protects the actual word. That, Buschmann says, is not what a trademark protects. What is actually protected is the consumer impression of the brand—the brand’s “goodwill.” (Or, the entity’s reputation, if you will.)
To better understand this idea, think of one of the most recognizable brands in existence: Coca-Cola. The company has trademarked the name as well as the shape of the bottle (what’s called “trade dress”) and built them up to symbolize all of the pleasant feelings you might have toward the product: the taste, the fizz, summertime memories, etc. Those consumer feelings are the “goodwill.” Now, say another company started making something so similar in name and bottle appearance to Coca-Cola that you might not be able to discern the difference. Maybe that second company’s product tastes terrible or they start producing R-rated ad campaigns. Then, as a result, you start associating terrible taste and vulgarity with the actual Coca-Cola, and your goodwill evaporates. The trademark exists so no one can tamper with all the goodwill consumers may have for Coke.
The question then becomes: is it reasonable to assume the consumer could confuse the difference between the two entities involved in the trademark dispute? And does that confusion injure their impression of the brand? If the two parties at odds over this impression can’t work it out, a federal court will decide.
Evermore Park’s trademark infringement complaint against Swift alleges a number of points where consumers might be confused. Primarily, this focuses on “evermore” merchandise. The park has a trademark registration for T-shirts, other clothing items and various tchotchkes. The complaint claims that the evermore shirts T-Swift sells on her online store infringe on the park’s trademark rights, and marketing those products (along with products with “vulgar terms” like Swift’s “fancy s*** mug“) is harming the park’s trademarks.
The online shopping link to the Swift’s evermore collection was removed after the park sent a cease and desist, but the complaint alleges that the removal does not make up for the losses to the nearly $1 million spent on advertising, securing a web domain name and labor costs, partially because the merchandise (in the land of Swift-ermore) is still available for purchase.
Swift’s lawyers alluded that the lawsuit is all about money, and they framed the suit as an act of desperation resulting from Evermore Park’s financial woes. As evidence, Swift’s legal eagles hold up a 2020 report by Utah Business that found the park faced “financial ruin,” owing millions of dollars to its construction contractors. Even before Swift’s team filed the countersuit, Evermore Park’s CEO was facing at least five lawsuits from major construction companies according to Utah Business.
Taylor Swift’s Countersuit: TAS Management v. Evermore Park, LLC
The day after Evermore Park filed its trademark infringement complaint, Swift’s legal team says it got a tip from a former volunteer at Evermore Park. The tipper reported that park performers were singing Taylor Swift’s songs without obtaining the right licenses. (The complaint filed by Swift’s management company does not confirm that the source was a Swiftie, but the timing of the tip could suggest the tipper did not agree with the legal actions against Swift, especially given that the illicit performances had allegedly been happening since 2019 and Swift’s fanbase is notoriously protective of their girl. Just look at the replies on ex John Mayer’s new TikTok.)
This tip, wherevermore it originated, has reportedly provided Swift’s team the grounds to countersue Evermore Park, along with multiple letters to the park warning that any such performances constitute copyright infringement. The complaint goes on to say that Evermore Park ignored these written warnings, which date back to 2019, and did not try to obtain the proper licenses until after the park learned of the Swift (very swift) countersuit. Swift’s lawyers claim Evermore Park’s CEO then immediately sought “retroactive” authorization that would cover all public performances since 2019.
And, point to Team Swift: Yes, copyright infringement is similar to trademark infringement, but it suffers less from a trademark’s hard-to-gauge legal murkiness.
According to Buschmann, copyright is more narrow. It protects the expression of an idea in a fixed work or body. Plus, it doesn’t have to be multiple unlicensed performances of an entire song to meet the threshold for copyright infringement. Just using a single couplet from a copyrighted song could be called infringement, depending on the context and how credit is given to the artist. The penalties for copyright infringement can also be pretty significant. Just ask Vanilla Ice about sampling the baseline from David Bowie and Queen’s collaboration “Under Pressure” in “Ice Ice Baby” without credit.
Proving copyright infringement gets even easier, especially if you have a video or audio recording of the alleged infringement and/or someone willing to testify to it. After that, once again, the case will be up to a federal court to decide if the parties don’t find a way to settle outside of court first.
Whether either side of the evermore dispute has an open-shut case is up for legal argument, but Swift has the legal team, the money and the dedicated fans required to weather just about any storm. The same cannot be said for a start-up fantasy theme park in Pleasant Grove. While we all love a David and Goliath story, it’s hard to know who to root for when David’s motivations are called into question and the proverbial Goliath made something as good as folklore, a Taylor Swift album that reminded me we’re the same age.