Showing posts with label freedom of speech. Show all posts
Showing posts with label freedom of speech. Show all posts

Thursday, February 13, 2014

Federal Appeals Court Prohibits "Pro-Life" License Plates


Most states offer specialty automobile license plates that reflect a variety of special interests and political viewpoints. The state typically charges a nominal sum for a specialty plate, and may contribute a percentage of the proceeds to a non-profit organization dedicated to that particular cause.

For example, Virginia offers a license plate that says:  "Friends of Tibet." According to the Department of Motor Vehicles, as a revenue-sharing plate, after the sale of the first 1,000 qualifying plates, $15 of the $25 fee is transferred to the Conservancy for Tibetan Art and Culture to support its programs in Virginia.  Virginia also offers a "Friends of Coal" plate, with funds going to the Virginia Department of Mines, Minerals and Energy to support its programs.

Other states offer plates with a wide variety of viewpoints and diverse causes represented. Florida offers a John Lennon "IMAGINE" logo license plate, supporting efforts to reduce hunger. Others range from anti-terrorism and anti-drug messages to those supporting the National Rifle Association, pro-environmental conservation efforts and many others.

However, the American Civil Liberties Union filed a federal lawsuit against the State of North Carolina, which had approved a license plate in 2011 depicting children on it, along with the phrase "CHOOSE LIFE." Each plate would cost $25, with $15 of that going to the Carolina Pregnancy Care Fellowship, an association of nonprofit pregnancy counseling centers.

The North Carolina legislature considered, but rejected, license plates that would have said "TRUST WOMEN" and "RESPECT CHOICE."

The ACLU's argument was that, by choosing a "pro-life" viewpoint without offering equal time to an "opposing" viewpoint, the government ran afoul of the First Amendment.

And yesterday, the United States Court of Appeals for the Fourth Circuit agreed with the ACLU. North Carolina has been banned from manufacturing the plates.

Friday, September 6, 2013

'Deep Throat' Makers Cannot Halt Release of Unauthorized 'Lovelace' Biopic


Images Courtesy of Radius-TWC

Entertainment Weekly and Variety report that the recent Weinstein/Millennium film “Lovelace” appears to be clear of a possible preliminary injunction that could have kept the film from being released in theaters.

The producers of the film were sued for copyright and trademark infringement in New York federal district court by Arrow Productions, the owner of the copyrights and trademarks on the original adult "Deep Throat" franchise, which starred Linda Lovelace.

The recently-released biopic film stars Amanda Seyfried as Lovelace, a fragile woman who becomes an infamous porn star seemingly happy with her decisions, but who eventually breaks free from her husband and discloses the truth about her treatment in order to prevent other women from getting similarly exploited.

According to the Complaint, the producers used the name "Lovelace" and several minutes of copyrighted material from the 1972 adult film "Deep Throat," without permission. "In fact, the title 'Lovelace' derives its market appeal entirely from decades of cultural cache embodied in the trademarked name Linda Lovelace. … Rather than negotiating licenses for Deep Throat IP, rather than deferring to Arrow’s vision for the Deep Throat brand, Defendants have simply taken what they wanted and crossed their fingers.”

However, despite Arrow's characterization of the producers as having "tak[en] several minutes of copyrighted material" without permission, the truth is not that simple.

Arrow claims that the copyright infringement arises from a "re-creation of a short scene" and a "brief re-enactment of the filming of scenes of 'Deep Throat'," not wholesale theft of copyrighted footage.

Consequently, Arrow alleges, these unauthorized reenactments constitute "derivative works" of the original copyrighted material, which Arrow owns.

Furthermore, Arrow alleges that the value of the "Deep Throat brand" has been "decimated," because it did not approve the film's depictions of exploitation of the film's protagonist.  It is not clear if any consumers have been confused into believing that Arrow endorsed or sponsored the film.

Intellectual property law is not so clearly on the side of Arrow.  Performing a "re-creation" of an event does not necessarily constitute copyright infringement, simply because that event was filmed.

Arrow's Complaint itself alleged that the 1972 release of the film Deep Throat "was a watershed moment for American culture."

Re-enacting an event does not necessarily violate copyright laws.  A reenactment that borrows too heavily from copyrighted material could infringe, however.  For example, if the reenacted footage replicated the use of a copyrighted script line by line, it could infringe the screenwriter's rights. Furthermore, copyright law permits a copyright owner to control "public performance" of his work.

A "free speech/fair use" defense could be successfully asserted by Lovelace's producers, based on the argument that the derivative use made was transformative, in that it commented on the event by adding some additional material or perspective.

Consequently, application of this defense would permit some degree of interpretative reenactment as a form of social commentary on the underlying factual events that took place during the filming of Deep Throat.

For now, at least, the film's producers have been able to release the movie, but since the Complaint (embedded below) has not yet been dismissed or resolved, further litigation appears possible.

Thursday, September 5, 2013

"Stop Islamization" Trademark Refused: Applicants Decry Political Correctness in Appeal


Image on AFDI Website
A U.S. federal trademark application for an anti-sharia law campaign known as "STOP ISLAMIZATION OF AMERICA" was filed by a group called the American Freedom Defense Initiative (AFDI), a pro-Israel group founded by controversial bloggers/commentators Robert Spencer and Pamela Geller.

The AFDI had been behind a grassroots movement that sought to stop the building of a mosque in lower Manhattan, near the Ground Zero World Trade Center site, claiming that the act would offend 9/11 victims' families.

Critics such as the Southern Poverty Law Center and the Anti-Defamation League have accused the AFDI of being an anti-Muslim hate group, alleging that it promotes a conspiratorial anti-Muslim agenda under the guise of fighting radical Islam" and "seeks to rouse public fear by consistently villifying the Islamic faith and asserting the existence of an Islamic conspiracy to destroy 'American' values." 

The Trademark Office refused the group's application for a trademark on the basis that it "consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols."

The Trademark Office ruled that it must apply a two factor legal test, asking: (1) What is the likely meaning of the matter in question; and (2) is that meaning referring to identifiable persons, institutions, beliefs or national symbols, and whether that meaning is disparaging to a substantial composite of the referenced group.

The Trademark Examiner concluded that, applying this test, the likely meaning of ISLAMIZATION refers to the act of converting to Islam, and that the proposed mark effectively disparages Muslims by implying that conformity to Islam is something that needs to be stopped.

The Trademark Office cited several cases supposedly supporting its conclusion.

However, on further examination, the cases that the Examiner cited were not necessarily relevant or helpful to its case, such as when the Trademark Office found THE MEMPHIS MAFIA for entertainment services not to be matter that disparages Italian-Americans or bring them into contempt or disrepute.


The group appealed the Examiner's final refusal to the Trademark Trial and Appeal Board (TTAB), which affirmed the rejection.

Now, the group has appealed this decision to the United States Court of Appeals for the Federal Circuit, which hears appeals from final Trademark Office refusals to register trademarks.

In the appeal brief, the AFDI's lawyer argues that:

"Appellants [Geller and Spencer] are sympathetic to the USPTO’s politically correct sensitivities enticing it to protect Muslims and indeed Islam itself from even the slightest hint of disparagement in the form of public criticism, especially in the post-9/11 age with global terrorism conducted daily in the name of Islam and the Arab Spring featuring the Muslim Brotherhood’s Islamisation program for Egypt and elsewhere melting into murder and mayhem.

The problem with these sensitivities as applied to the denial of Appellants’ Mark is that the USPTO’s beef is not with Appellants or their Mark, but rather with terrorists who claim to speak in the name of all of Islam and all Muslims.  Appellants’ Mark does not.  

One of the AFDI's NYC MTA Advertisements
'Stop the Islamisation of America' has a specific meaning that Muslims and non-Muslims in America and indeed throughout the West embrace if they treasure liberty and religious freedom for all.  In a zeal to take on the role of parens patriae and to protect Muslims from every insult, the USPTO and the TTAB have both ignored the factual record and have simply assumed meanings and understandings of the terms of the Mark that have no factual or evidentiary basis.  There is no substantial evidence to support the TTAB’s Decision or the USPTO’s denial of the Mark."

The USPTO has yet to file its response.

The AFDI has seen its fair share of federal litigation and previously triumphed. For example, in a federal lawsuit that it filed against the New York Metropolitan Transit Authority (MTA), the group succeeded in forcing the MTA to carry its advertisements on the sides of New York City buses and in the subways.

The MTA had rejected the group's advertisements, purportedly on the basis that they "demeaned" Muslims.  

Friday, August 30, 2013

Fashionable Parodies: Where Does Free Speech End and Dilution Begin?


Where does First Amendment-protected parody end, and trademark dilution and/or infringement begin?


As was mentioned in the WWD article, and has been commented on in fashion blogs such as Stylecaster and Refinery29, I explained that there are two separate legal theories at play here, functioning against the backdrop of the Constitution's guarantee of freedom of speech.

I also explained that these cases are highly fact specific and often depend on both the particular sensibilities of the brand involved, and the message being conveyed.

Likelihood of Confusion:  The first legal test is fairly straightforward, that is, would the ordinarily prudent consumer, when confronted with the accused item, likely believe that it originated from, was sponsored or endorsed by, someone else?  For example, would a prospective consumer confronted with one of Brian Lichtenberg's "FELINE" t-shirts (depicted left), believe that fashion brand Celine was behind it?

Dilution:  The second legal question is, assuming purely for argument's sake that there was NOT a serious likelihood of consumer confusion, is there still a likelihood that a famous brand will be diluted, either through tarnishment or through "blurring" of its ability to continue to function as a trademark?

In other words, the law holds that a famous brand can be diluted, even in the absence of any consumer confusion, if the famous brand is called to mind and tarnished.

An example of a case where federal courts found that harm to the famous Coca Cola brand was indeed likely from tarnishment include the famous "ENJOY COCAINE" poster.  

In that 1972 case which was decided decades before the Federal Anti-Dilution statute was passed by Congress, a New York court held that "to associate such a noxious substance as cocaine with plaintiff's wholesome beverage as symbolized by its "Coca-Cola" trademark and format would clearly have a tendency to impugn that product and injure plaintiff's business reputation, as plaintiff contends."

This holding has long suggested that a key part of the inquiry should focus on whether there is a salacious quality to the parody that injures the brand.

The First Amendment:  However, there is a third critical issue which is the First Amendment guarantees freedom of speech. Courts have long held that commercial activities do not fall within the "core" of political speech that the Founding Fathers intended. Consequently, commercial conduct can be more regulated than purely political speech.


Because the sale of a t-shirt with a parody logo emblazoned on it could function as a form of "speech," the first question looks to what exactly is being communicated by the intent of the parody, and is that message being effectively communicated?


In the case of Brian Lichtenberg's "FELINE" shirts, the shirt clearly is designed to call Celine's brand to mind, but it isn't really clear what the message is.  Merely "mocking" an established brand is not necessarily sufficiently political an act to warrant free speech protection.  Otherwise, the "ENJOY COCAINE" t-shirt would have been protected, and it wasn't.
Not all courts have found that a protected parody requires a clear political "message."

In a 2007 case, Louis Vuitton lost an attempt to stop a small company from selling "CHEWY VUITON" dog toys.  

The Fourth Circuit Court of Appeals in Virginia affirmed the dismissal of that case, holding that:  "[a] parody must convey two simultaneous -- and contradictory -- messages:  that it is the original, but also that it is not the original and is instead a parody.  This second message must not only differentiate the alleged parody from the original but also must communicate some articulable element of satire, ridicule, joking or amusement."  (emphasis added).

The Chewy Vuiton dog toy was not shown to be causing any form of consumer confusion, but was clearly designed to call Louis Vuitton's famous trademark to mind, and mock it.  There was no clear political message, but the absurdity of the item itself functioned as a mockery of the high end luxury brand.

Further, in part because a chewy dog toy is not a salacious item, there was really no "tarnishment" of the brand.  Ultimately, the parody was obvious to the observer, leaving Louis Vuitton without any form of legal remedy.  Indeed, the Chewy Vuiton dog toys are still available for sale on Amazon, and Louis Vuitton seems to have survived.

More troubling for Lichtenberg, however, might be his t-shirt mocking Cartier with "CANNABIS."  (seen left)

Cartier would seem to have a valid claim of dilution, as per the 1972 ENJOY COCAINE decision.

The key legal questions are fact specific: Will the particular parody cause confusion? If not, will it dilute the brand through tarnishment or blur the trademark's ability to function? And finally, will the public's right to freedom of speech trump the brand owner's perceived offense?

So, in conclusion, clever parodies of famous designers are certainly not new, and courts have long struggled with balancing the public's right in free expression, with the brand owner's right to protect its image.