As we ease out of summer, we thought we’d share a lighthearted story about how a song about Victoria’s Secret went viral on TikTok and made it to the Billboard 100.
As Madonna aptly wrote (and sang), music makes the people come together.
That happened this summer when an American singer named Jackie Miskanic (professionally known as Jax) released a song called “Victoria’s Secret.”
Jax was a finalist on American Idol in 2015, and signed a recording deal with Atlantic Records in 2021. She has a significant following on social media, including more than 7 million followers on TikTok under her handle @jaxwritessongs. Despite her popularity, she still babysits in her hometown in New Jersey.
In June of this year, she wrote a song for 13-year-old Chelsea. The song came about because Jax picked up Chelsea from a mall where she had been shopping in Victoria’s Secret. Chelsea returned to Jax’s car crying, because a “friend” bullied her – the friend said that a Victoria’s Secret bathing suit made Chelsea look “too fat and too flat.”
Jax, who suffered from eating disorders in her teens, quickly wrote “Victoria’s Secret” for Chelsea, and they posted it on TikTok together. The song went viral (it currently has more than 41 million views), and made it to Billboard’s Top 100 chart.
The song lyrics smack down Victoria’s Secret, the (in)famous lingerie company which was, at one point, the largest retailer in the United States. In recent years, Victoria’s Secret has been widely criticized for its failure to represent women of varied sizes and different backgrounds, for adversely impacting women’s body images, and for and for a corporate culture of misogyny. Though Victoria’s Secret is the target, the song is a metaphor about companies that prey on women’s insecurities.
The chorus of Jax’s song is:
I know Victoria’s secret
And girl, you wouldn’t believe
She’s an old man who lives in Ohio
Making money off of girls like me
Cashing in on body issues
Selling skin and bones with big boobs
I know Victoria’s secret
She was made up by a dude!
(The “old man who lives in Ohio” is Les Wexner, the former CEO of Victoria’s Secret who was the subject of a docuseries on Hulu this summer called Victoria’s Secret: Angels and Demons. The series explores, among other things, Wexner’s relationship with Jeffrey Epstein.)
In addition to garnering millions of likes, Jax’s song earned a lot of praise – especially from women and girls who struggle with eating disorders, who are frustrated with the ongoing message that being thin and attractive is the key to happiness and success.
As a trademark lawyer, I couldn’t help but think of how use of the Victoria’s Secret brand in the title and within the lyrics of Jax’s song is harming the company’s reputation. I’m simultaneously very pleased that the First Amendment and the doctrine of fair use protects Jax’s right to express herself.
We’ve come a long way from Rogers and Grimaldi, a 1989 case where the actress Ginger Rogers sued Alberto Grimaldi and MGM over the title of a 1986 film by Federico Fellini called “Ginger and Fred.” The film at issue in that case was about fictitious Italian cabaret performers who emulated the style of Fred Astaire and Ginger Rogers. Ms. Rogers claimed that the film violated her trademark rights.
Rejecting Ms. Rogers’ claims, the Second Circuit held that the Lanham Act does not bar the use of a celebrity’s name in the title of an artistic work if the title does not (i) explicitly denote authorship, sponsorship, or endorsement by the celebrity or (ii) explicitly mislead as to content. Rogers v. Grimaldi has been the seminal case used to balance First Amendment rights in creative works with the federal trademark law ever since.
We’ve also come a long way from the lawsuit by Mattel against MCA Records over the song Barbie Girl by the now-disbanded Danish group, Aqua. In that suit, Mattel claimed that the song constituted trademark infringement and dilution of its BARBIE brand, among other things. MCA and Aqua contended that the song was a parody.
In its 2002 decision affirming the dismissal of Mattel’s case, the Ninth Circuit wrote that a trademark owner “does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function.” The judge pointed out that consumers hearing Janis Joplin sing “Oh Lord, won’t you buy me a Mercedes-Benz?” would not suspect that she and the carmaker had entered into a joint venture.
Unlike Ginger Rogers and Mattel, who were quick to litigate perceived threats to their brands, Victoria’s Secret did not file a trademark infringement lawsuit in response to Jax’s song. Instead, Victoria’s Secret CEO Amy Hauk released a letter, thanking Jax for addressing important issues. She wrote:
“Our transformation is a journey and every day we are working hard to advocate for all women… As CEO of Victoria’s Secret and PINK, I can wholeheartedly say that we are all committed to building a community where everyone feels seen and respected. And if we mess up or can do better, we want to know.”
Victoria’s Secret’s response was the right thing to do from a legal perspective, since the title and content of Jax’s song are protected by the First Amendment. The company’s response also seems like the right thing to do from a marketing perspective, since today’s consumers expect brand owners to hear and address their concerns.
Music has long been used to effect social change. It’s a fitting sign of the times that the newest song to make an impact was written by an American Idol alum, and shared on TikTok.