Go Ahead, Jump on the Jagger Wagon (But Know the Law Before You Do!)July 14, 2011 – Article
I’m a sucker for any show that involves singing (except for, perhaps, this one). So, of course, I watched the latest American Idol knockoff to hit the airwaves — The Voice. During one of the show’s episodes, Maroon 5 took the stage to debut their new single titled “Moves Like Jagger.” Much like the title suggests, “Moves Like Jagger” pays homage to Mick Jagger’s iconic dance moves (luckily, not these dance moves).
After I heard this song for the first time (which turned into hundreds of hundreds of times as it played on loop in my head for about two days), I wondered whether Mick Jagger had any legal remedies to prevent Maroon 5 from using his name in the song title (assuming Mick did not authorize them to use his name in this way). Let’s see what Sir Michael Jagger could do if he decided to do his cocksure strut down to the courthouse.
The Lanham Act (a.k.a. Federal Trademark Law)
Mick has cultivated his celebrity identity for decades. He is a rock-and-roll legend, an actor, a producer, and a knight (as a similarly cartoonish person once said: one of these things is not like the others…). Mick, like most celebrities, has an interest in protecting his identity from the commercial use by others in a way that misleads the public into thinking he’s associated with such use (akin to a person holding a traditional trademark). The Lanham Act provides the legal avenue for Mick to vindicate this interest and yada yada yada…I know, you’ve heard this here many times before.
When artistic works like movies, songs, books, and plays are concerned, the use of a celebrity’s name is treated differently than if the celebrity’s name was simply used to promote a product or service. Titles of such artistic works are of a hybrid nature — they combine artistic expression and commercial promotion. Because of this element of artistic expression, and the courts’ reluctance to intrude on First Amendment values, titles are provided with more protection than the branding of ordinary commercial products.
In the context of using a celebrity’s name in a song title, the Lanham Act will apply only where the public interest in avoiding consumer confusion outweighs the public interest in preserving free artistic expression. To balance these interests, the court would likely apply the “artistic relevance” test (the same test that was used by courts in cases involving OutKast’s song “Rosa Parks” and Aqua’s song “Barbie Girl”). According to this test, Mick will need to show (a) that the song title has “no artistic relevance” to the underlying work, or (b) if it has some artistic relevance, that the song title “explicitly misleads as to the source or content of the work.”
Under this analysis, Mick might run into a bit of a legal roadblock. While there is no doubt that Maroon 5 uses Mick’s last name in the song title (unless, of course, Maroon 5 is referencing the slick moves of your common peddler), there is clearly an artistic relationship between the title and the lyrics. Mick is universally known for his spastic, chicken walking, hand-on-the-lower-back-with-other-hand-in-the-air, lady-killing dance moves and Maroon 5 explicitly references those moves throughout the song. For this reason, a court would presumably find that a purchaser of “Moves Like Jagger” would not be misled regarding the song’s content. Mick’s only hope would be to convince a court that the title could cause consumers to think that Mick was somehow involved with the song (which is much less of a stretch than with songs like “Rosa Parks” because I’m pretty sure Mick did some music work on top of his dancing). He would have a chance but it would be an uphill battle (especially considering that a survey of today’s music consumers would probably elicit reactions like “Jagger? Is she one of Miley’s friends?”). Ultimately, Mick will have a tough time persuading a court that Maroon 5’s use of Jagger is an infringement of his “trademark.”
Right of Publicity
Before Mick hangs up his legal dancing shoes, he might try to argue that Maroon 5’s song title violates his right of publicity. A right of publicity claim is similar to a Lanham Act claim in that it grants Mick the right to protect the commercial interest in his name. However, these two claims differ in one key respect: a right of publicity claim does not require Mick to prove that a consumer is likely to be misled by the song title. To the contrary, all that Mick must prove in a right of publicity action is that he has an economic interest in his name, and that his name has been commercially exploited by Maroon 5.
Unfortunately (or fortunately, if you’re lame enough to side with Maroon 5 over the Rolling Stones in any way, shape, or form), Mick will once again have to overcome that pesky First Amendment in order to prevail. To come out on top, Mick will need to show that (a) the song title is wholly unrelated to the content of the song (see above for why this is a nearly impossible feat for Mick) or (b) that his name was used in the title simply as a disguised commercial advertisement for goods or services. In trying to prove the latter, Mick might try to argue that the use of his name in the song title unquestionably enhanced the song’s sales to the consuming public — I doubt a song titled “Moves Like Cocker” would have quite as much sale potential. However, Maroon 5 will argue that the song title is entirely related to the song’s content and, therefore, cannot be considered merely a disguised commercial advertisement (and I’m sure Maroon 5 would like to think this song’s climb to #1 on the iTunes digital songs chart was because of the song’s funky, danceable melody, and not because of the Jagger namedrop).
Of course, I suspect Mick will forgo filing a lawsuit and instead kick back in his castle with whatever model he’s dating this week while basking in this flattering, free publicity. Besides, as long as today’s musicians aren’t creative enough to find anything else that rhymes with the word-du-jour “swagger,” Mick’s going to get used to hearing his last name in songs.