LOS ANGELES (Variety.com) – Taylor Swift’s lawyers have said “It’s on,” effectively, to a Utah theme attraction, Evermore Park, that sued Swift earlier in February, alleging that her “Evermore” album infringed on its trademarks. Possibly not entirely coincidentally, Swift’s company TAS Rights Management has now sued Evermore Park in return, contending that the attraction has long had its costumed performers singing hits by Swift and others without a license, despite demands made in the past by the performing rights organization BMI.
The fresh lawsuit was filed on Feb. 22 with the U.S. District Court in the middle district of Tennessee, Swift’s home state, by TAS. Evermore Park’s suit against Swift had been submitted on Feb. 2 in the U.S. District Court’s central division in Utah.
The two filings, both examined by Variety, tackle entirely separate issues of trademark infringement and rights violations, though the new one filed by Taylor Swift’s attorneys does make a passing mention of Evermore Park’s action. Ostensibly unrelated as the two complaints are, the message may be clear: What’s good for the goose is good for the gander, to put it in legalese.
Deep into the Taylor Swift lawsuit, it’s asserted that her attorneys were contacted on Feb. 3 — the day after the Evermore Park suit was filed — by “a former Evermore Park volunteer and frequent patron of Evermore Park, advising of the unlicensed public performance of Artist’s music. Information was provided by this individual proving Defendants’ infringement of the copyrighted works.”
Given the immediate juxtaposition of those two dates, it would seem that Evermore may have had a Swiftie in its ranks who didn’t take kindly to the Utah attraction sending its legal dogs after the pop superstar and turned over evidence that the park was using her copyrighted material.
According to the Swift camp’s suit, though, this was not the first time that unlicensed usage of pop songs at the park had come to the attention of BMI’s Nashville office. The filing says that in August 2019 and again about a month later — well before the 2020 “Evermore” album was a twinkle in Swift’s eye — BMI Nashville sent letters to Evermore Park “following up on a number of prior contact attempts, alerting them once again of their unauthorized performance of the Works and their legal obligation to obtain licenses for the public performance of the Works.”
A footnote says that park employees who “play songs upon request” are known to have performed the works of artists including Katy Perry, the Beatles, Britney Spears, Nirvana, Billy Joel, Britney Spears, Green Day, Whitney Houston, Journey, Semisonic, Tom Petty, Queen, Weezer, and others in addition to the Swift songs “Love Story,” “You Belong With Me” and “Bad Blood.”
The suit says that despite BMI inundating Evermore Park with “phone calls, emails, letters, and draft license agreements,” the Utah attraction “ignored these messages” and continued using the songs without a license or payment, “with full knowledge of their infringement, to drive attention and attendance” to the park. It goes on to contend that once Evermore Park got wind that Swift might sue, the owners “recently reached out to BMI’s Nashville, Tennessee office multiple times, suddenly requesting a retroactive license… Indeed, Defendants initiated contact only after recent events made this action imminent.”
The Swift camp’s suit notes that the infringing performances take place at a section of the park called “the Burrows” where two actors sing to large crowds in what are billed as “musical character performances.”
Meanwhile, the lawsuit filed by Evermore Park earlier in the month against Swift, TAS Rights Management and Taylor Nation alleges trademark violations that began when the singer announced the release of her “Evermore” album in December and put up a merchandise line to go with it.
Evermore Park — which owns the evermore.com domain name, and notes that it paid $300,000 for the privilege — says that when Swift suddenly announced the imminent release of her album on Dec. 10, “web traffic on Evermore Park’s website… spiked 330.4% in comparison to traffic on the previous day.” The jump was from 1,668 visitors the day before to 7,179 on the 10th, at a time when the park was closed down, as it has been for months, as a result of the pandemic.
That increased traffic is a good thing, right? That’s what the Evermore Park lawsuit contends Swift’s attorneys tried to tell the park in conversations prior to the filing. They say that after sending a cease-and-desist letter on Dec. 29 telling Swift’s lawyers to discontinue any use of the title “Evermore,” the star’s attorneys wrote back saying, “[i]f anything, your client’s website traffic has actually increased as a result of the release of Ms. Swift’s recent album which, in turn could only serve to enhance your client’s mark.”
The Evermore Park camp’s response to that in its lawsuit is to attach a screenshot of Google search results from Jan. 31 of this year in which a search on the word “evermore” produces only one result for the theme park, one for a Wikipedia disambiguation page that includes information about a variety of names and titles that include the word, and the remainder all referring to Swift’s new album.
Evermore Park’s suit details plenty of other beefs the company has with Swift, all the way down to how she has used the words “escapism” and “epic” in describing the material on her album, words that also appear in their promotional material. It contends that the “Willow” music video, which depicts Swift inside the base of a tree, resembles tree trunk imagery in a pair of park soundtrack albums that are for sale on iTunes. The suit also alleges that Swift’s “ornamental cloth patches, three-dimensional plastic ornaments, purses, all-purpose carrying bags, key wallets and key pouches” resemble their own souvenirs.
In the part of the Evermore Park that would undoubtedly be most comical to many Swift fans, the company complaints about the star’s allegedly image-damaging “use of explicit lyrics and marketing of goods using vulgar terms,” specifically singling out an item known as “the ‘fancy shit’ mug” (named after a lyrical aside in the song “Tolerate It”).
The Evermore Park suit asks a jury to reward “not more than $2,000 per counterfeit mark,” with no indication of how many trademark infringements they have in mind.
Swift’s suit also asks for a jury trial but does not set any recommended amounts. (The singer and her reps resisted any temptation to ask for $1, as they fought for on principle — and won — in a 2017 sexual assault case against a radio DJ.)
Although the suit filed by Swift’s team scarcely addresses the merits or lack thereof of the Evermore Park filing, it’s fairly easy to see from the latter what kind of counterargument could be made in court, if things get that far.
Evermore Park’s lawyers bring up a point that was apparently made in prior communications between the camps, that any trademark on the word “evermore” is a “weak” one on the scale of registered terms. “Defendants’ arguments that the EVERMORE Trademark is weak is both self-serving and inadequate under established precedent,” say the Utah attorneys.
A look at the Wikipedia disambiguation page cited elsewhere in Evermore Park’s lawsuit shows that the word “evermore” has been used a fair amount in popular culture, and not just in the pre-pop writings of Edgar Allen Poe, whose talking raven may still be the primary go-to most people associate with the word, Swift’s hit album notwithstanding.
The Wikipedia page for the term includes three books titled “Evermore” (one of which was on a 2009 New York Times bestsellers list for children’s literature), one band by that name from New Zealand, five albums that have the word as a partial or complete title (including Swift’s), and six songs of which the same is true. The “Evermore” song catalog includes numbers by that name by artists from W.A.S.P. to Hillsong Church, plus an “Evermore” that was included on the 2017 “Beauty and the Beast” soundtrack and, of course, Led Zeppelin’s 1971 “The Battle of Evermore,” a “Lord of the Rings” homage that somehow did not earn the oft-sued band a complaint from the J.R.R. Tolkien estate.
Evermore Park’s suit preemptively denies what it says is Swifts’ attorneys’ contention that the initial suit was filed out of financial woes from being closed during the pandemic. The ambitious, ride-less park, which opened in 2017 with a cited investment of $37 million, was enthusiastically described by the Los Angeles Times in a 2018 article as a renaissance fair-like, interactive-fantasy attraction with a touch of “Westworld” that could “forever change how we view theme parks.”