Trump vs. Taylor: A Tale of Two Tees & their Trademark Infringement Tangle

A color-blocked T-shirt featuring once and aspiring future President of the United States Donald Trump is his newest campaign fundraiser. But the eye-catching outerwear, allegedly “inspired” by a strikingly similar design promoting megastar Taylor Swift’s “Eras” tour has many diehard Swifties seeing red over trademark infringement.

Are Swifties right in thinking Trump misappropriated Swift’s intellectual property to his own ends (and bullying their idol, to boot), or does IP law support Trump’s right to use the same base T-shirt design as political speech?

Could Trump have a more sinister motive for picking that design to copy at such a pivotal moment in his campaign?

Is there a trend toward certain politicians ignoring creators’ IP rights in favor of getting elected at any price?

What fallout can we expect from this situation, and is it likely to impact political campaign management in the future?

A Tale of Two Tees

Swift’s Story?

Taylor Swift’s “Eras” tour exploded onto the global stage in March of 2023 and quickly became a phenomenon without peer, equal, or rival. Even when adjusted for inflation, the “Eras” tour has shattered at least 8 musical tour records and surpassed even Elvis, the Beatles, and Garth Brooks, the Olympians of modern music.

In doing so, the “Eras” tour also cemented Swift’s unassailable coronation as the Queen Regent of the American–and global–music scene, a title that even her sharpest detractors are hard-pressed to deny she earned the hard way.?

To promote the tour and give the fans some idea of what “Eras” means to her personally, she commissioned a compilation of photos and album covers past and present. Rendered in a color-block format which inescapably evokes the spirit of Andy Warhol and presented in an order only Swift herself and maybe some very observant megafans can decipher, these images document her musical and personal journey.?

We see her as the doe-eyed, sweetly pensive, awkward teenager with a guitar and a gift for crafting touching lyrics and hummable compositions who first tiptoed almost apologetically onto the country music scene.

From there, the pictures follow her progression through the highs, lows, lows which should have been highs and vice versa, including the highly publicized, long-running feud between Swift and rapper-turned-professional self-destruct button Kanye West and the legal aftermath of her falling-out with hitmaker and former manager Scooter Braun.

The later pictures show a woman who’s seen the good and bad of fame and fortune and successfully navigated them all, against all odds and expectations, to arrive at the top of the music world. She’s been through it all, seen it all, and is comfortable with all the power, prestige, and problems which come with her throne. The pictures chosen to publicize the “Eras” tour reflect the story and legacy of a woman who’s earned her place in the world and is prepared to enjoy the chapters to come, whatever they may hold.???

But it’s the power Swift wields among her fan base, and one of the uses to which she’s recently put it, which many Swifties say prompted a not-even-remotely-veiled “F— you” from the Trump campaign.

Trump’s Tale

I’ll spare us both an exhaustive recap of Trump and his political journey over the past couple of years and jump straight to the heart of the matter.?

On the evening of September 10th, Trump and Kamala Harris squared off onstage on live TV for what may be the only Presidential debate of this election year. In the wake of the debate, Swift took to Instagram to publicly pledge her support for Harris.

Given the aforementioned power she holds as the world’s biggest pop star and musical act, some might view this announcement as similar in resonance and impact to a proclamation from the Vatican to the Catholic faithful around the world.

Less than three days later, on September 13th, Trump’s Presidential campaign unveiled a “new” tee design as his latest fundraising brainstorm on social media platform X. The shirt featured a variety of color-blocked pictures of Trump at various points in his Presidency, with a grayscale full-length image of the two-term hopeful in a suit and his signature “Make America Great Again” baseball cap. In the post, the Trump campaign exhorted “all Swifties for Trump” to go get their own piece of American political campaign history for, well, not a song, but a trifle, really: a campaign donation at any level from $45 USD up to $1,000 USD.

Within seconds after the post went live, dedicated Taylor Swift fans around the world started metaphorically setting social media ablaze as they expressed their outrage over the design–and at least on the surface, they have some very good reasons to do so. This might seem debatable, until we consider one more milestone day in this saga.

On September 15th, aka the day this post was originally written, Trump wrote in so many words and all caps, “I HATE TAYLOR SWIFT!” on Truth Social. He also posted several AI-generated photos of: women wearing “Swifties for Trump” shirts; a doctored news story claiming that her fans are turning to Trump after terrorist group ISIS forced Swift to cancel a concert date in Vienna; and Swift wearing the iconic Uncle Sam outfit, with a caption saying “Taylor Swift wants you to vote for Donald Trump!” With the exception of the image of a young blonde woman wearing a “Swifties for Trump” shirt, all the images were marked “Satire,” as you can see by clicking here. This is an important point which deserves more attention, and we’ll give it due consideration shortly. For now, let’s get back to the main story.?

Which shirt is which?

To the naked eye, the only difference between the shirts is who’s in the pictures. One features a country-pop ingenue turned mogul and sometime entertainment-world villain; the other features a man old enough to be her grandfather and formerly the most powerful political figure on the planet. The layout and colors used in the shirt appear to be identical to Swift’s. The font employed is the same. The order of the color blocks is the same. The orientation and subject of the photos, and most notably the grayscale images, are the only obvious difference.

Trump’s version has him facing to the wearer’s left, staring away from the viewer and holding up his fist in salute. Swift’s version has her striding toward the wearer’s right while looking directly at the viewer.??

Leaving the subjects of the photos in the respective shirts entirely to one side, it is possible that a forensic analysis might reveal subtle differences or alterations between the two shirts.

However, those differences are extremely unlikely to provide sufficient differentiation to deflect any accusations of improper and unauthorized IP use and attempted dilution of trademark Swift and her legal team may level against Trump.

The Trump Defense

In any action involving trademark where parody is invoked as a defense, as seems like the most likely initial approach, the courts may consider some or all of the following points to determine if it's parody and thus protected, or infringement and actionable.

1. Likelihood of Confusion: Would a consumer of average intelligence, education, and cultural knowledge be likely to be confused as to the actual source of the goods, services, or statements attributed as coming from the owner of the trademark?
2. Commercial Nature: Since the shirt design as advertised by both Swift and Trump is intended to generate revenue, there's not much doubt here that Trump's use has a commercial element.
3. Degree of Transformation: The shirt's primary or underlying design was not altered at all in any meaningful way. This means that someone who knew about the Eras shirts and seeing at a distance someone wearing a shirt with that basic design would understandably think it was an Eras shirt - until they got closer and noticed who's really in the pictures.
4. Commentary or Criticism: This test would be difficult to call, and is highly subjective and more or less left to the judge's discretion.
5. Market Impact: Does the infringement dilute or adversely impact the original IP holder's market for the goods or services they provide? In this case, I believe the answer is an unequivocal yes, and I'll demonstrate why in just a couple of minutes.

What might this look like in court?

The following is pure speculation on my part.

This scenario assumes that Swift’s team follows the customary procedure and sends a cease-and-desist demand, which the Trump campaign ignores or outright refuses. Swift then follows the proper protocols and procedures to file a civil suit against Trump and the Trump campaign. A court date is set for a preliminary hearing, and both/all parties attend as expected and required by the court.

If you’ve been following my articles for any time at all, certainly since the beginning of this year, you probably already know the name of and lyrics to this tune. For those who haven’t been playing along at home, here’s how I see the opening of this case playing out. These are just educated guesses on my part, but given how similar cases have gone in the past, the first steps are about as predictable as beating a five-year-old at chess.

1. Team Trump opens with a motion for summary dismissal of any action against him or the campaign, asserting protection under the fair use exception to US copyright and trademark law. Specifically, they will claim that the shirts and AI-created social media posts are intended as satire, parody, and critique of a public figure and are therefore exempt from protection.?
2. Team Taylor shuts this down by pointing out that Trump posted or caused to be posted, “I HATE TAYLOR SWIFT!” in a public forum, along with images he admitted were doctored using AI, and noting the timing of the shirts on Trump’s campaign site versus the time Swift announced her support for Harris. The goal will be to demonstrate that these actions were not intended as a joke or a game, but as a willful and malicious attempt to subvert Swift’s character, brand, and reputation to Trump’s own ends. If they want to go for extra bonus points, they may also note that Swift has been the target of bullying, including attempted bullying using the mechanism of the American legal system, from both high-profile figures and everyday people for most of her career. They’ll likely point up the similarities between Trump’s conduct and that of, say, Kanye West, vis-a-vis Swift.
3. Team Trump now attempts the old Hail Mary play in cases like this, by claiming that the posts and shirts are covered under the First Amendment right of free political speech.
4. Team Taylor ripostes, noting that free political speech as set forth in the US Constitution has been explicitly and repeatedly affirmed in both statute and settled case law NOT to apply in situations where such speech infringes upon the rights of another person or entity under the US Constitution, just like any other form of free speech which may cause imminent harm or damage to another citizen. Both as a citizen of the United States and brand, Swift is entitled to protection from such infringing conduct. Moreover, Trump’s assertion even in jest that Swift had actually endorsed him and not Kamala Harris poses a direct threat to Swift’s brand, reputation, goodwill with the public, and therefore the viability, longevity, and earning potential of her brand.
5. Team Trump objects and drags out all publicly available figures regarding Swift’s net worth and holdings and notes and sometimes unrelated facts.
6. The judge determines Taylor’s action can proceed, give or take a few points of jurisdictional or procedural issues, and sets a trial date.?

From here, either a settlement agreement is reached or they go to trial. Swift has no incentive to back off and every reason to take the case to trial; a settlement benefits her only insofar as it means less billable hours her legal team can claim, while it would be a godsend for Trump.

Given that Swift has a well-publicized reputation for ruthlessness when circumstances require, I wouldn’t bet on her letting him off so lightly–or at all.

The Bottom Line

One of the strangest and yet least-remarked aspects of the 2024 election season is the cavalier attitude many aspiring and seasoned elected officials have taken toward intellectual property rights.

High-profile dustups involving the Who’s Who of the music world (or their estates, in many cases) presenting a united front not seen since the recording of “We Are the World” in 1984 are gaining traction as they move slowly but inexorably through the courts.

News items about unauthorized use that entered the news cycle quietly and faded away without a ripple have reduced stories about the intersection of politics and IP in general (particularly music) to airtime filler at best and media non-events at worst.

A case like this could change all that, though.

Given the profile of the people involved, the media attention is likely to be much more intense and far less easily disregarded than many similar scenarios that either have played out, are currently playing out, or will play out in courtrooms across the country in the near future.

There’s also a high probability that campaign reform laws aimed at limiting or disallowing such conduct in future will start hitting the Senate and House floors in January 2025, or possibly even sooner. Finally, given all this, I wouldn’t be shocked to learn that current IP and trademark laws are being revised to give them some extra teeth in scenarios like this.

As we’ve seen, this is not the average IP/trademark dispute–and I think it’s fair to say we can expect the fallout from it in the long term to be just as extraordinary as the situation which brought it into being.

About the Author

John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include "Escaping the Gray" and "Think and Grow Rich for Inventors" and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show - Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi his patent law practice at www.ThePatentProfessor.com

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