April 20, 2017
In a world of fake news, clickbait, and alternative facts, there is a bit of comfort in knowing at least one undeniable fact. Donald J. Trump is enthusiastic about stamping the TRUMP name on most any goods or services and reaping the benefits of the ancillary trademark rights. He first sought trademark registration for a Trump-branded product in 1985 and has since sought to register in excess of 300 other trademarks with the United States Patent and Trademark Office, including the now ubiquitous MAKE AMERICA GREAT AGAIN® mark, which was registered on August 16, 2016. While he often files applications through his various corporate entities, the fact remains: Donald Trump loves him some trademark rights.
This may elicit a few questions though. First, can a sitting POTUS own trademark rights? Also, what about other intellectual property rights: patents, copyrights, trade secrets? Can a U.S. President acquire, assert, enforce, or use with impunity certain types of intellectual property?
I shall do my best to answer these, though I will try to avoid addressing in detail the emoluments clause elephant in the room. For now.
September 30, 2016
On September 29, 2016, the United States Supreme Court granted certiorari in the matter of Lee v. Tam, regarding whether the disparagement provision of the Lanham Act is facially invalid under the First Amendment, particularly whether it restricts free speech. This is the appeal from the same case I wrote about last December. I am curious to see how the Supreme Court tackles this issue, and what I consider substantive errors in analysis made by the Federal Circuit last fall.
Nevertheless, while the legal issues are heavily nuanced and regard convoluted topics such as “chilling effects,” “government speech” versus “commercial speech,” “disparagement,” and what constitutes “use in commerce,” it appears the layperson is confused by the scope of the case. Particularly, after the news broke yesterday, the common theme was “why is a musical group not allowed to call itself the Slants?” – which is not only wholly irrelevant to the issue but is also a dangerous interpretation of what I consider to be an important trademark matter.
In short, you can name your rock band whatever you want. You can also name your professional football team whatever you want (looking at you, Washington Redskins). No one is going to stop you. The United States Patent and Trademark Office, however, may refuse to grant you a trademark registration for such a name. Not that the name cannot be a trademark – it can be – but “registration” confers additional benefits that may or may not extend to marks that the USPTO considers to be “disparaging” of people or groups. This is the entirety of what the Supreme Court is going to address.
Instead, here I will try to address the distinction between free speech, trademarks, and trademark registrations in general terms.
Can musicians and artists legally demand that politicians not use their works?
Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.
Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:
Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
In January 2015, in Davis v. Electronic Arts Inc., the United States Court of Appeals for the Ninth Circuit held that the makers of the extremely popular Madden NFL video game series could not overcome former players’ claims for violation of publicity rights by claiming First Amendment protections. Electronic Arts Inc., the Defendant and the maker of the game, eventually appealed to the United States Supreme Court on grounds that they are essentially being penalized for making a game that is “too realistic” and life-like. An emboldened use of the “we are just too good at our jobs” defense, perhaps?
On Monday, March 21, 2016, without any further commentary, the Supreme Court denied EA Sports’ petition to hear the appeal. Procedurally, this is called a denial of certiorari, and it means that the Ninth Circuit’s verdict remains the final judicial determination on the issues presented. Colloquially speaking, and while maintaining the proper sports metaphors, this means the Supreme Court punted.
But what really is the issue here? Where do publicity rights end and the First Amendment begins? Why does EA Sports contend that it has no obligation to pay retired professional athletes for the use of their images and likeness rights?
Comic book movies are big business. It was not always this way. Even if it seems that all Hollywood movies today are merely adaptations of comic book characters. Superman and Batman were always popular characters and were the focus of relatively successful movies. This includes the Christopher Reeve Superman movies through the launch of Tim Burton’s Batman franchise in 1989. But the recent trend of superhero dominance at the box office essentially began with Bryan Singer’s X-Men in 2000.
X-Men languished in development for years, but then surprised with a massive box office haul that summer – and made a star out of Hugh Jackman in the process. It also adopted the tone of the comic books and made it safe to adapt the concepts as a movie. The success of X-Men begat the Tobey Maguire Spider-Man franchise, which begat the Christopher Nolan Dark Knight trilogy, and suddenly Warner/DC Comics’ and Marvel’s collective catalog of characters became hot property. Not all characters have been treated equally, however. Batman, for example, will always be seen as a safer bet than, say, Ghost Rider. Movies are budgeted accordingly.
Today, the average Hollywood movie budget exceeds $100 million. This includes salaries for the cast and crew, CGI costs, and in many cases… licensing rights. Yes, your favorite comic book characters are subject to both copyright and trademark protections. Like I said, it is big business.
How do these licensing and intellectual property issues affect the production of a movie for a minor character like, say, Deadpool? Let the games begin!
Donald Trump is an expert level troll. He is in the midst of the most unconventional Presidential campaign of the Internet era. Political scientists still cannot categorize or describe him as a candidate. Meanwhile, Trump continues to hoard the media’s attention for everything he does. Most recently, Trump gained attention when visitors to JebBush.com were instead being re-directed to Trump’s own campaign website.
It seems that as early as December 8, 2015, someone purchased the domain for JebBush.com and, to the chagrin of the Bush campaign, sent visitors and Bush supporters to his rival’s official website – www.donaldjtrump.com. For the record, JebBush.com is not the official website of the Bush campaign. Additionally, Trump and his campaign team deny any direct involvement in the prank, though the current owner of the JebBush.com domain is remaining silent for now.
Just for fun, however, let us assume that Donald Trump is responsible for the domain name purchase and the re-direct to his own campaign site. Is this legal? Does this make Trump a no-good cybersquatter and trademark infringer? Let’s explore!
Two trademark applications have recently caught my attention. Both involve NFL players and their offhand comments that have become accidental catchphrases. I highlight these two as a means of underscoring the recent trend among athletes to seek to register trademarks of all kinds. Most of these marks, unfortunately, have limited commercial value and a short lifespan for relevance among the consuming public. While I am a champion for protecting your trademark rights, these two particular applications strike me as nothing short of absurd.
Please allow me to explain…
Time flies. I was a freshman in college when Kobe Bryant declared that he was going to skip college and go straight to the NBA. Fast forward twenty years and Kobe has announced that he is retiring from professional basketball at the end of the season. Through a poem.
Kobe has always been known for being a voracious competitor on the basketball court. But it appears he has a plan for life after basketball. Kobe has already formed “Kobe, Inc.” and has started the process of acquiring trademark registrations. For nearly everything.
It has been a recent trend for athletes to seek to acquire trademark registrations for their names and nicknames and likenesses. (“Johnny Football,” anyone?) Kobe is just taking it to the next level, which is entirely consistent with his personality as we know it. The question is what exactly is he seeking to protect?
Last weekend, The Hunger Games: Mockingjay – Part 2 made over $100 million at the box office. The movie’s success is largely due to the strength of Jennifer Lawrence and the popularity of the books. Enough digital ink has been spilled discussing the movie as a dystopian political outlook for young adult audiences. Instead, here we repurpose the world of Panem as if it adopted the intellectual property laws currently in the United States.
Accordingly, under that hypothetical, what trademark and publicity rights does Katniss Everdeen have? Did the rebels and/or the nation-state of Panem violate or infringe any of these rights by exploiting her image as the “Mockingjay”?
[mild spoilers ahead, proceed with caution if you have not seen the movie]