The Legal Minefield of Non-Shitty Band Merch

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Most band merch is awful. Go to A$AP Rocky’s booth post-Governor’s Ball. There will be a table with $60 tees that have a strong graphic design is my passion vibe. Fans, being fans, buy them anyway, but only a handful of performers (Travis Scott, Kaytranada) sell really great stuff.

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There’s a fairly simple reason why. Where most design-driven markets — clothing, furniture, greeting cards, Christmas ornaments — are defined by competition, the band merch market is defined by licensing deals. Most designers are locked out so the market is dominated by branding and merchandising companies like Merch Traffic, which manages the online storefronts for artists like Ice Cube, Lana Del Rey, and The Strokes. Those bigger artists also tend to have in-house creative staff. And the designers who ignore licensing rules risk getting sued by artists, who aren’t exactly eager to be seen suing their own fans.

Case in point: In December, country superstar Luke Combs sued several online sellers for making homemade tumblers and tees with his face on them. Combs claims that he didn’t know smaller sellers were involved and wound up giving thousands of dollars to one of the defendants, who a) had congestive heart failure, b) had only sold 18 tumblers, and c) suddenly found herself owing a superstar $250,000.

It’s a mess. And it doesn’t really work for anyone. The artists wind up hawking crap merch, and the fan-designers miss an opportunity to make and sell Billie Eilish tees. The question is simple: How can artists and fan-designers quickly get around legal and logistical obstacles in order to work together? Erin Singleton, the CEO and founder of Softside, is trying to build a (digital) table where that can happen. Think of it as non-bootleg Etsy.

“Our focus for a while was… on the issue of music artists struggling to monetize from this massive bootleg market,” Singleton tells SPY. “After talking to a ton of fans and creators, though, we found that they don’t like to even be on these marketplaces…. We’ve found essentially that fan merch doesn’t have a proper home.”

In other words, fan-designers don’t want to sell bootlegs if they can avoid it and artists want to allow fan-designers to monetize their work — within reason. Neither side is good with the legal status quo, which enriches a bunch of suits who don’t make anything.

“There is a business model of outsourcing enforcement to law firms that specialize in suing a lot of people and companies at once, asserting that they’re foreign and likely to flee with the money, and getting orders freezing their assets,” Rebecca Tushnet, a Harvard Law professor specializing in IP law, tells SPY. “The trademark owner gets a percentage of the take but isn’t involved in the litigation. The fan is only one of many people caught up in this.”

This legal tactic was really built for high-end brands like Gucci, which need to file suits against large lists of knockoff vendors, take down URLs, knock over social accounts, and get court orders to freeze sellers’ assets. But it has also been used by high-end bands like Nirvana, which sued almost 200 online businesses for selling fake merch two years ago, and Harry Styles, who did the same thing last year. The problem? Small sellers who aren’t really hurting anyone get caught up in mass-defendant lawsuits.

“As of the moment, it seems like the music industry and entertainment industry view the issue as a singular bootleg issue meaning that all counterfeit merch is made by these massive companies that are pumping out fake look-alikes,” Singleton says. “We noticed there’s not real segmenting with fans also producing merch.”

Then there’s the fact that fans often respond to official merch that’s subpar physical quality. Taylor Swift fans complained about the thin material of the pop star’s official shirts throughout her Eras Tour — merch that Swift made $200 million off of, according to Deadline. And then there’s the other matter of fans who just think it’s plain ugly.

Bigger artists tend to release merch at a “rhythm,” Singleton says. “It’s only one release every few months for tours and albums, but fans are very quick with online jokes, and the official merch is still there, but with those fan things, they come in between drops… A lot of fans told us they thought artists missed the mark. They’re not capturing the little details they’re hearing when they’re listening to an album on repeat.”

Singleton says that fan merch is crucial to the social media age, where fans react to new music — and new moments with their favorite artists — in real-time. In contrast, artists only typically do merch sales every few months, and usually around tours. An example of an artist seizing the moment last year involved Beyoncé, on her Renaissance tour. A fan shouted out to her, “Where are the visuals?” and she responded, “You are the visuals, baby.” Fans meme’d the moment instantly, and Beyoncé’s team responded with an official T-shirt with that quote. That’s not typically how it goes.

It’s expensive to purchase inventory upfront, so many artists play it safe with simple logos and album designs. “But fans have told us they don’t necessarily want the safe, boring options — they want discrete designs, they want playful illustrations and ‘if you know, you know’ visual references. They want something they can justify paying for,” Singleton says.

For the last year and a half, Softside has only worked with six artists. Fans submitted designs online, and then Softside worked with the artist teams to select favorites to become official merch.

By the end of this year, Singleton says that fan-designers will be able to create designs directly on the website and submit them to an artist’s teams, who then approve or reject a concept. Fan-designers will also have the option of submitting a portfolio of work to get themselves hired — “I like this one, can you make a shirt in that style?” — which would represent a big incentive for professional graphic designers to join the visual mosh pit.

“Creative commissioning,” Singleton calls it.

“If Plan A is for artists to earn money through their website, why not have a Plan B that monetizes the secondhand market in collaboration with their fans?”

Softside has been experimenting with smaller artists for its trial run — Indigo D’Souza, Phony Ppl — but if it can land major ones (maybe not Taylor Swift, but perhaps Tinashe), those artists would likely get dedicated web pages where the process for submission and purchasing works a little differently. Singleton just wants to set up her business as a strong go-between, so that an artist’s team can engage with fans and their merch. Like LinkedIn, but for jokey Drake merch.

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