Artist as a Brand and Phenomenon: Case Käärijä

As we look forward to the new year, we wish to take you back to the phenomenon that was Käärijä in 2023.

Last spring, all of Finland was buzzing about the artist Käärijä — winner of Finland’s national song contest Uuden Musiikin Kilpailu (UMK) 2023 and Finland’s representative for the Eurovision Song Contest 2023. Käärijä won the hearts of audience of all ages with his magical charisma and the catchy song “Cha Cha Cha”. The hype quickly spread to other countries, and soon everybody wanted to be a part of the story. Green boleros, black bob haircuts and neon colours could be spotted in outdoor displays, city statues, and countless brand logos. Social media content with twists to the lyrics could also be spotted in various marketing campaigns. It is safe to say that Käärijä’s brand quickly became a viral phenomenon.

Käärijä’ success is a great example of a brand quickly becoming a viral phenomenon. It showcases how third parties are quick to recognize and utilize the value in hyped brands. Indeed, the considerable volume of third parties using Käärijä’s brand elements may not have been completely unproblematic. Could Käärijä have stopped third parties from joining the hype? What could have been the legal basis for this? In this article, we will discuss the branding and IP protection of viral phenomena through the case example of Käärijä.

Branding in the creative industries

Traditionally, creative fields have been surrounded by a romantic notion of art being a form of expression beyond the mundane and finances. Art was perceived as a noble pursuit, disconnected from the commercial world. To some extent, this conventional and rather idealistic notion may persist to this day, explaining the typical lack of branding and IP protection in the world of artists and musicians.

However, in the present landscape, the boundaries between art and commerce have blurred significantly. Today, creative endeavours very often intersect with economic realities. In these circumstances, branding and intellectual property protection become essential tools for monetizing creativity. On the other hand, brand protection not only safeguards an artist’s creations as products but also as cultural goods. By establishing a strong brand identity, artists not only secure their creations on the market but also anchor them in the broader cultural landscape. A brand may become a symbol of artistic integrity and quality, connecting with audiences on a deeper level. In the music industry, branding also often goes beyond the music itself: it often encompasses the style, image, and values of a singer or a band.

Despite this reality, branding and IP are still frequently overlooked in creative fields. This leads to regretful situations where the lack of branding and protection is only realized after popularity has already soared. In addition, the digital age poses new risks to artistic creations as content sharing has become easier than ever.

The Käärijä phenomenon – brand elements and timeline

Upon reflecting on the artist’s brand elements, we identified artist’s name “Käärijä”, the song and expression “Cha Cha Cha”, as well as various fashion elements, such as the green bolero, hairstyle, and leather clothes embellished with spikes. All are elements which the public may widely associate with Käärijä and which were also used by third parties during the time leading up to the Eurovision. Surprisingly, the artist only holds registrations for two brand elements: the name “Käärijä” and the name “Paidatonriehuja Oy”. Other brand elements remain unregistered, although being significant contributors to the artist’s success and uniqueness.

Interestingly, registration processes for trademark and company registrations did not start until the beginning of the year 2023. Prior to this, the artist had no registered rights. This is even though the same name and logo have been in use since the beginning of his musical career. In addition, it seems that some element of hurry was involved in the registration process. The company name “Paidatonriehuja Oy” was registered only six days prior to the publication of the UMK finalists. Trademark registrations were also not initiated until last spring. The Finnish trademark application for the word “Käärijä” was filed in March 2023, after the win in UMK.[i] EU trademark application for the word “KÄÄRIJÄ”, on the other hand, was filed only after the Eurovision Song Contest final last May.[ii]

The limited registered rights prompt the question of whether any of Käärijä’s brand elements are protected by copyright or other non-registered rights. Several of the brand elements include features which may curtail their potential for copyright protection. For instance, the functional nature of clothes can hamper their possibilities to reach the standard of originality that copyright requires. However, design pieces that result from their author’s free and creative choices cross this threshold as there is no absolute barrier to the copyright protection of clothing (C-683/17 Cofemel, C-833/18 Brompton). In fact, the artist’s label company has given a public statement claiming that the neon green bolero is part of the artist’s brand. However, such statement does not have any confirmatory legal effect. Whether or not the bolero or other fashion elements actually enjoy copyright protection remains a question open to interpretation.

As for the expression “Cha Cha Cha”, it seems unlikely for these simple three words to pass the originality threshold of copyright law. Several other earlier songs include identical or similar expressions. If assessed by the Finnish Copyright Council, “Cha Cha Cha” is likely be left out of copyright protection similarly with the expressions “Onks Viljoo näkyny” (“Have you seen Viljo”), “Lycka till” (“Good luck”) and “Aha” (exclamation in Finnish) which were assessed by the Council in case TN 1986:8. Albeit this may be the case, the song “Cha Cha Cha” itself, as well as the lyrics, clearly constitute copyright-protected works.

All in all, considering the many eye-catching brand elements and the phenomenal success of Käärijä, the amount of registered IP rights remains somewhat limited. It may have been wise to initiate registration processes earlier to ensure timely enforcement of rights. With limited registered rights and copyright-protected elements, it may be challenging to intervene in third party utilization. In these cases, the artist must rely on alternative tools, such as invoking sections of the Finnish Unfair Business Practices Act (1978/1061). The key message to be gleaned from this is that artists and their teams should contemplate implementing a well-structured brand strategy right from the outset – and not until popularity has already boomed.

Going viral and becoming a phenomenon

The Käärijä phenomenon clearly showcases how brands have an unprecedented opportunity to gain rapid popularity and widespread international recognition in the digital age. Even if similar extensive popularity is not yet expected, it is still wise for brands to recognize the risks and opportunities involved with going viral.

As presented above, viral popularity often makes a brand susceptible to unauthorized use, counterfeiting and IP infringements. For this reason, it is essential for brands to be well-prepared: it is wise to adapt a brand strategy early on, to consider trademark and domain registrations and to conclude necessary agreements, such as NDAs, in the initial stages. If the stars do indeed align and popularity does boom, it is important to capitalize on the momentum before someone else does. It is essential to stay vigilant and monitor all IP rights, as well as to make prompt decisions on brand enforcement once infringements or other unwanted third party activity is noticed.

While the focus is often on the challenges and risks, viral popularity can also be beneficial from a brand protection perspective. Sometimes, third party use may even be welcome: it may bring increased visibility, creating opportunities for exposure that may have been hard to come by otherwise. Third party use, especially if authorized by the brand holder, may also contribute to a brand’s good reputation. It may even be possible to present examples of third party use in front of a relevant authority as proof of a brand element constituting a well-known trademark or a reputed brand element.

Finally, it is worth considering what makes a brand go viral. Obviously, there is no straightforward recipe for success. However, it may be possible to identify certain elements which may also have contributed to the popularity of Käärijä’s brand. Firstly, we cannot dismiss the fact that Käärijä was one of the participants in the Eurovision Song Contest. As a format, the multistage Eurovision provides a great platform for the birth of viral phenomena. Between the domestic and the international competition, there is plenty of time for a phenomenon to intensify. Often, anticipation is the key element to building climax. Other elements include elements of oddity and authenticity embedded in Käärijä’s outfit, dance and other brand elements. Novelty value and difference offer an inescapable way to spark conversation. Lastly, Käärijä presented a somewhat unique opportunity for a Finnish artist to succeed in an international event with the Finnish language, therefore strongly gathering Finnish audience as advocates for the phenomenon.

Takeaways

In conclusion, the case of Käärijä highlights the risks involved in rapid and phenomenal success that brands can achieve in the digital age. Brands should not be blinded by the potential of success but mitigate the possible risks before it is too late. In Käärijä’s case, limited registered IP rights raise challenges in protecting some of his key brand elements: his funky hairstyle, neon green clothes, and the infectious “Cha Cha Cha” chant that is guaranteed to play in your head after reading this article.

The article is a synopsis of the authors’ presentation at Helsinki IP Summit on October 4, 2023.

[i] The word mark is now registered with registration number 284884 in classes 25 and 41 for, among others, clothes, headgear, education, entertainment, and sports services. More detailed information may be found in the database of the Finnish Patent and Registration Office.

[ii] The word mark is now registered with number 018881055, for a range of goods and services in classes 3, 9, 14, 16, 18, 21, 24, 25, 26, 28, 29, 30, 32, 33, 35, 38, 41, 43. More detailed information may be found in the EUIPO database.

Kannen kuva: Auri Vainio