A friend asked me this question in relation to the Redskin trademark decision. If the basis for this was based upon the offensiveness of the term “Redskin”, could songs that include the N----- word have their copyrights revoked, voided or whatever, because of their offensiveness. Seems like we would be treading on 1st amendment free speech issues, which kind of call into question the government’s ability to void the Redskin trademark to begin with.
But maybe monetarily protected speech is different from 1st amendment free speech.
I’m not a lawyer but my understanding is that the two are totally different.
Copyright is pretty much automatic. As soon as you write something and can verify that it is your work and written on or before a certain date, you’ve got a copyright (unless you sign away those rights by say clicking agree on a message boards terms of service for example)
Trade mark is more of a privilege in which the government that grants you the exclusive use of that name to do business. As such they can have more discretion over who that grant this privilege to.
The logos and other design art are still covered under trademark, so it’s a moot point.
Losing the trademark on the name does make it a bit harder to go after t-shirt and jersey counterfeiters but possibly not by a whole lot.
ETA: the trademark protection is on top of any copyright protection on particular forms of creative expression that may already be there - but copyrights theoretically expire, while trademark protection doesn’t have to.
Sure, but what are the laws of the government concerning copyright? So far as I’m aware, they’re pretty much relegated to how long something stays in copyright, the standards for judging if something is original or derivative, and what sort of penalties apply for violating someone else’s copyright. There’s no legal mechanism by which a court can say, “We don’t like what you’re saying, so you can’t have a copyright.”
It’s also worth noting that (AIUI) this does not prevent the Redskins from using that name, or even suing other people for using it without their permission. A registered trademark grants the owner some additional legal tools to make trademark enforcement easier. Losing the registration isn’t the same as losing the trademark.
Trademark and copyright are extremely different beasts, and neither one is really tied to free speech.
Trademark is primarily a consumer-protection measure. It exists so that the public can have confidence that a particular product is actually made/authorized by a particular commercial entity.
Copyright is a mechanism for allowing creators to monetize the creative effort that goes into developing a work. It recognizes that with creative works the cost of reproduction is often small compared to the cost of creation, and so giving creators a limited monopoly on reproduction is an efficient way to cover the cost of creation.
Since trademark is primarily a customer-protection measure, it makes perfect sense to deny protection to marks that are offensive to consumers at large. Copyright, on the other hand, is structured to encourage creative work. Denying copyright because of content would not be compatible with copyright’s reason for existing in the first place.
There is no similar provision (that I know of) in the copyright law. In fact, one of the reasons that the term of copyrights keeps getting extended is allegedly because Germany wants to keep control over Adolph Hitler’s book Mein Kampf by means of its copyright.
It should be noted the panel voted 2 to 1 in favor of revoking the trademark. The dissenting member made the case that the determination whether the trademark violated the law should have been made using the standards in effect when the trademark was first applied for, not using contemporary standards.
A key difference, as I see it, is that a trademark protects something that is linked to a property. But a copyright protects the property itself. A copyright is on the equivalent of a novel while a trademark is on the equivalent of that novel’s title. So revoking a copyright would be a seizure of property, which is not the case with revoking a trademark.
Revoking a copyright over offensive language immediately raises free speech issues. It’s a form of censorshop; since offensive books cannont be banned simply because they offend someone, ending copyright protection is essentially the same thing.
Trademarks, though, are used in trade. Advertising and trade can be regulated; the FTC can regulate ad claims, for instance.
It would seem more logical to actually let the consumer decide if a trademark is offensive. In the absence of such real-world repercussions, the government is now “protecting” the consumer from himself. Institutional over-reach.
It’s like the difference between putting an offensive bumper sticker on the back of your truck and getting an offensive vanity license plate. The government can’t stop you from saying whatever you want, but they have no obligation to participate in helping you say it.
I agree with you. Copyright is about PROPERTY RIGHTS, not free speech. The first amendment doesn’t say anything about being allowed to PROFIT from your speech. It just says you can’t be stopped from speaking your mind. You can have copyright without free speech, and you can have free speech without copyright.
Which is why framing the trademark issue as matter of free speech is silly. You’re free to call your sports team whatever stupid, offensive name you want. But if you want the community to respect your monopoly on using that name, you need to meet community standards.
No trademark has been revoked by the TTAB decision nor can it be. The government cannot stop a company from using an offensive trademark.
All that us at issue is whether a trademark registration might be revoked. A trademark and a trademark registration are two different things.
In theory there could be a provision of the copyright law that denies certain kinds of benefits to particular works. And there are indeed some categories of works that are denied protection:
• public domain works
• government works
• pleadings in legal proceedings
I can’t say off the top of my head but I’m pretty sure that obscene works, such as child pornography, are denied copyright protection.
However, I think any new category of such works very well might be subject to First Amendment analysis. If you deny protection to some works you might have to pass strict scrutiny.
You’re suggesting the government should take a hands off approach to the actions of the government?
Sorry, but no. If a business is seeking a trademark, they’re asking for government enforcement. And if you’re going to the government and asking them to do something for you, it’s reasonable to expect the government might set some terms on what they want you to do in return.
Registering child pornography presents an interesting problem: In order to register a work, you must send a copy of the work. But possessing a copy of child pornography (let alone sending it through the mail or transporting it across state lines either electronically or otherwise) is a crime in itself. Not to mention filing a document with the government claiming to be the creator of child porn…
And even if you slip one by the bureaucrats, in order to defend your copyright against infringement, you have to be prepared to show up in court and claim you are the creator (or subsequent owner) of the child porn, which is not so smart.
So the left wants to argue that bullying a corporation’s potentially offensive speech (Mozilla’s CEO contributing to anti-SSM causes) is the market exercising free speech. But in this case the market is not refuting the supposedly offensive speech by the Washington Redskins, so the left wants the government to intervene politically to essentially blackmail the corporation to change its name. This decision is purely political.
Let’s not pretend denying the trademark does anything in service of the consumer. The market will be flooded with unofficial Redskins jerseys made by god-knows-who. It holds a corporation’s millions in potential in earnings hostage. The purpose of government is to protect trademarks that are well-established, and if the market finds the trademark offensive they will stop buying. This ruling in fact abrogates the power of our free speech as exercised through our dollars. If money is speech, for better or worse, then this ruling is denying us as consumers to exercise our speech.