"metro Boomin Want Some More" Intellectual Property Rights: Why Producer Tags Can & Should Be Protected by Trademark Law

• Publication year: 2022
• Citation: Vol. 53

53 Creighton L. Rev. 603. "METRO BOOMIN WANT SOME MORE" INTELLECTUAL PROPERTY RIGHTS: WHY PRODUCER TAGS CAN & SHOULD BE PROTECTED BY TRADEMARK LAW

"METRO BOOMIN WANT SOME MORE" INTELLECTUAL PROPERTY RIGHTS: WHY PRODUCER TAGS CAN & SHOULD BE PROTECTED BY TRADEMARK LAW

-Christopher Greene '21 ^[D1]

I. INTRODUCTION

In the realm of hip-hop music, producers make the instrumentals-including the drums, the bass, the samples, and any other instrumentation-that vocalists rap or sing over. ^[1] Generally speaking, producer tags (sometimes called drops) are prerecorded vocal snippets, often featuring all or part of the producer's name, that producers place at the beginning of most or all of their instrumentals. ^[2] They serve as a producer's signature or tagline: a way to identify an instrumental as theirs without requiring the listener to dig through a song's credits. ^[3] Because producer tags serve an important function to an essential, but often overlooked, contributor to a finished song, producers have a strong incentive to protect the brands that they build. ^[4] No court has addressed an infringement claim involving producer tags. ^[5] Should a producer ever need to turn to the legal system to protect their interest, trademark law ought to provide a method to do so. ^[6]

Because a producer tag primarily serves the purpose of identifying an instrumental's source, trademark law is a natural fit for protecting this unique intellectual property right. ^[7] This Note will first review the history and origins of producer tags before examining their form and function. ^[8] Then, this Note will explore the distinction between copyright and trademark law. ^[9] This Note will then discuss the use of sounds as trademarks and the trademark doctrine of functionality. ^[10] Next, this Note will argue that producer tags are properly the domain of trademark law, not copyright law. ^[11] Then, this Note will argue that producer tags ought to be recognized as unique sound marks that do not require a showing of secondary meaning in order to qualify for trademark protection. ^[12] Finally, this Note will argue that the doctrine of functionality generally does not limit the protectability of producer tags. ^[13]

II. BACKGROUND

A. Producer Tags

1. The Origins and History of Producer Tags

The precise origins of the producer tag are unclear. ^[14] Discerning exactly where and when producers began using brief vocal snippets to identify their instrumentals is a difficult, if not impossible, task. ^[15] Despite that difficulty, there is little debate that producer tags, as we know them today, began to appear sometime in the early 2000s, and producer Just Blaze often gets much of the credit for starting the trend. ^[16] That said, the producer tag's rise in popularity likely owes a great deal to the advent of the internet, as aspiring producers selling instrumentals online sought to protect their work from theft by scattering snippets of their names throughout the song. ^[17] These tags would be removed from the instrumental after a vocalist purchasedit. ^[18]

As some of these established and aspiring producers became powerhouses in the music world, many felt that their tags were no longer necessary. ^[19] In a strange twist, however, vocalists began requesting producer tags on their songs. ^[20] These producers created such successful brands with their tags that a tag's presence on a song added value, rather than detracting from the finished product. ^[21] Turn to today, and the producer tag is an omnipresent facet of hip-hop music. ^[22] Producers like Metro Boomin, Mustard, and Mike WiLL Made-It have become cultural icons, and their respective tags have become essential and wildly popular aspects of hip-hop music. ^[23] What began in part as a subtle nod to the frequently uncredited musician behind the instrumentals has grown over the past two decades into an important part of the music itself. ^[24]

2. The Form and Function of Producer Tags

As stated in the Introduction, producer tags usually consist of a prerecorded vocal snippet that a producer adds to the beginning of most or all of their instrumentals. ^[25] In practice, these tags usually include some variation of the producer's name, often as the subject of a catchy phrase or statement. ^[26] While this over-arching formula is well-established and often repeated, there are as many approaches as there are producers, and not all tags fit into this general structure. ^[27] Some of the more original tags include everything from animal noises and samples of other media to repeated musical themes. ^[28] Of particular note are Pharrell's habit of repeating the instrumental's first beat four times in succession at the beginning of his instrumentals and Lex Luger's use of a rising, choppy synth before the bass drop on his instrumentals. ^[29] Uniquely, both forego the usual vocal snippet for a particular musical tool and a unique synth sound respectively. ^[30]

Regardless of the form a tag takes, it can serve two primary functions: to identify the producer or to protect the instrumental from theft. ^[31] Initially, established producers used tags to get their names and brands in front of listeners who might not otherwise recognize the musician behind the instrumental. ^[32] Concurrently, aspiring producers began using tags to protect their instrumentals from unscrupulous vocalists. ^[33] This latter use became so wide-spread among lesser known producers that many online instrumental marketplaces began offering a service that would automatically tag instrumentals with a generic producer tag-saving producers the trouble of adding their tag to an instrumental or creating their own unique tag. ^[34] Despite this tool, as producer tags have grown in popularity, many aspiring producers prefer to have their own unique tags in an effort to both prevent theft and establish a recognizable brand. ^[35] Aspiring producers sometimes merge these two functions by sending tagged instrumentals to major artists. ^[36] Often, if major artists use the instrumentals, they either fail or are unable to provide the proper credit to a producer. ^[37] By tagging their instrumentals, producers can ensure they get credit for creating the instrumental. ^[38]

B. Trademark and Copyright Law

Copyright and trademark law offer contrasting methods to enforce rights in intellectual property. ^[39] The Copyright Act of 1976 ^[40] protects original works of authorship in tangible forms, such as books, music, drama, pictures, sculptures, movies, and other works of art. ^[41] By contrast, the Lanham Act ^[42] protects any symbol or device used to identify the source of a product. ^[43] The boundary between copyright and trademark law is poorly defined, and courts have sometimes permitted claims that look like trademark claims to advance under copyright theories. ^[44] Nonetheless, a number of cases can help demarcate trademark and copyright law. ^[45]

In Dastar Corp. v. Twentieth Century Fox Film Corp., ^[46] the United States Supreme Court determined that trademark law does not protect ideas or concepts appropriately protected by copyright law, even when those ideas are linked closely to a good offered for sale. ^[47] The plaintiff, the owner of a World War II documentary series, sued the defendant for trademark infringement, alleging that the defendant had wrongfully copied the documentary and redistributed it. ^[48] The United States District Court for the Central District of California granted, and the United States Court of Appeals for the Ninth Circuit affirmed the plaintiff's motion for summary judgment. ^[49] Reversing this decision, the Supreme Court focused on what constituted an origin, differentiating between the manufacturing origin (in this case, the producer of the redistributed documentary) and the origin of the ideas contained in the underlying work (in this case, the creator of the original World War II documentary series). ^[50] In discussing this distinction, the Court noted that protection is provided to creators under copyright law, whereas trademark law exists to identify the source of a product. ^[51] In short, trademark law protects only the manufacturing origin of a creative work while copyright law protects the origin of the ideas contained within the work. ^[52] Thus, the Court reversed the lower courts' decisions, and determined that trademark law cannot be used to advance what is rightly a copyright claim. ^[53]

In Phoenix Entertainment, LLC v. Rumsey, ^[54] the United States Court of Appeals for the Seventh Circuit reached a similar conclusion by following Dastar. ^[55] In Phoenix Entertainment, LLC, the plaintiff, a producer of karaoke tracks, sued the defendants for unauthorized copying of the plaintiff's tracks and accompanying trade dress. ^[56] The plaintiffs argued that the defendants were violating the plaintiff's trademark by displaying unauthorized copies of the tracks while still utilizing the plaintiff's trademark and trade dress. ^[57] The United States District Court for the Central District of Illinois originally dismissed the trademark claims for failure to state a claim because the facts failed to show any likelihood of confusion. ^[58] The Seventh Circuit noted that the plaintiff's complaint was ill-suited for a trademark theory; it only worked as a copyright claim. ^[59] Since the plaintiff alleged wrongdoing in the copying of a creative work, rather than...