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Why Can’t Victoria’s Secret Sue Jax Over Her Song? Answer: Free Speech

Brands don't have much legal standing to stop creative works that prominently use their trademarks. Just ask Barbie and Aqua.

Victoria’s Secret doesn’t seem interested in fighting back against Jax and her song “Victoria’s Secret,” praising the chart-climbing track for “addressing important issues” about body positivity. That’s good news, because the retail giant wouldn’t have much legal power to do so even if it wanted to.

A viral sensation on TikTok that hit the Hot 100 last week, “Victoria’s Secret” calls out the lingerie retailer for profiting off young women and contributing to eating disorders. In her lyrics, Jax says Victoria’s “secret” was that she’s really “an old man who lives in Ohio / making money off of girls like me” — an obvious reference to the company’s billionaire former CEO Leslie Wexner.

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The prominent use of a brand name in the title and lyrics of song that’s so critical of its namesake begs the question: Can a company like Victoria’s Secret do anything to stop someone like Jax? After all, a brand name is a legally-protected trademark, right?

The answer is likely no, thanks to the Constitution’s protections for free speech.

“The First Amendment protects commentary about brands, whether that commentary is written, spoken or sung,” says David H. Bernstein, an attorney at the law firm Debevoise & Plimpton LLP and an expert in trademark law. “That is because the freedom of speech, including speech in a song, includes the freedom of an artist to sing about a brand. That is true whether the commentary is positive or critical.”

It’s worth noting, of course, that Victoria’s Secret does not seem intent on taking any kind of action against Jax. In an Instagram post on Aug. 11, CEO Amy Hauk said the song had “resonated” with her, and she thanked Jax for “addressing important issues in her lyrics.” The company would “make no excuses for the past,” Hauk said, and “admitting you were wrong” was an important part of “regaining your trust.”

But even if a company’s stance was less welcoming, it wouldn’t have much of a legal leg to stand on.

For decades, courts have made it very difficult to sue over the use of trademarks in “expressive” works like books, movies and songs, ruling that the First Amendment right to free speech generally trumps the rights of a brand owner to police how their name is used. Starting with a famous case involving Fred Astaire and Ginger Rogers, judges have ruled that a trademark owner can only sue if the use of their brand name was completely irrelevant to the creative work or was explicitly misleading — a difficult standard to meet.

As an extremely on-point example: In 1997, toymaker Mattel sued MCA Records over Aqua’s smash hit “Barbie Girl,” arguing that the song infringed the company’s trademark rights to the iconic brand of dolls. But a federal appeals court ruled in 2002 that a trademark doesn’t automatically entitle someone to “quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.”

“The song is about Barbie and the values Aqua claims she represents,” the court wrote in its decision. “The song title does not explicitly mislead as to the source of the work; it does not, explicitly or otherwise, suggest that it was produced by Mattel.”

That same analysis would apply to “Victoria’s Secret” if a lawsuit was filed. Jax isn’t using the name to sell lingerie or claim that she’s affiliated with the brand; she’s using it to sing about the world she grew up in, and the impact she believes Victoria’s Secret has had on it. Trademark or not, that’s exactly the kind of thing that the First Amendment is designed to protect.

“The artist’s right to free speech must take precedence as long as the title has some artistic relevance and the title is not explicitly misleading,” Bernstein says.

Of course, free speech isn’t some kind of absolute immunity. If Jax started selling t-shirts or other actual products with her song title on it, Victoria’s Secret would have a far stronger case for trademark infringement. Or if the lyrics included damaging, provably false allegations about the company or its people, Jax might face allegations of defamation.

And while the First Amendment generally allows for the use of brand names in titles and lyrics, it offers less clear protection to someone that adopts a brand name as their actual name. Gucci Mane and Kodak Black seem to be in the clear, but in 2016, Burberry sued an Atlanta rapper using the stage name “Burberry Perry,” claiming he was “using the fame and renown of the ‘Burberry’ trademark for his own personal gain.” The fashion house eventually won an injunction barring him from using the name. (A similar case involving Burberry was decided last year.)

But none of those situations would likely apply to Jax and her song. Much like Aqua did with Barbie twenty years ago, she’s simply using a brand name as a raw material for protected free speech — as one building block in a larger story about her life and the world as she sees it.

“It was a personal song for me because when I was [a teenager] I compared my body to the one body type companies like Victoria’s Secret strategically advertised, and that’s when I started developing eating disorders and body dysmorphia,” Jax said in a TikTok video addressing the company’s response to the song. “To be clear, my intention was never to take down a brand. I’m just a songwriter. I sing about my truth and then I hope that people relate.”