The Traklight Blog

A common refrain in this space is that intellectual property law is meant to protect, both in deterring would-be violators from messing with your IP and in instances where defending means taking an offensive approach against infringers. It’s a measure of power, and for small businesses, it can be the most considerable power afforded in those earliest days before there’s a customer or client to speak of. 

If you’re any sort of fan of college football, or at least aware of the product, you’ve undoubtedly noticed the proliferation of bowl games and associated sponsorship and branding around it. It’s that association with such august businesses as TaxSlayer, AutoZone and Cheez-It that give lie to the NCAA’s purported notion that the endeavor of college football itself is about shaping young men or the spirit of competition or whatever they put forth, and is not in fact a nakedly capitalistic enterprise meant to bring in millions to each respective university and billions in aggregate. Which is fine, by the way — colleges should just be honest about the pursuit, and pay the players like the income earners they are. 

The nature of celebrity would seem to make someone a target for intellectual property lawsuits, as noted in this space over the years, but that reading is a bit reductive, and elides the responsibility that the celebrity in question might bear. Sure, there may be cases where individuals or entities are looking for an easy payday, but the intoxicating mix of fame and power that accompany celebrity might make those people more prone to stepping on the rights of those of us living and working in the world they long ago left behind. 

The story of entertainment across decades is seemingly one of misappropriation or credit unduly denied, if the historiography of the various composite industries are to be believed. Really, they’re stories about power: who holds it, who doesn’t, and how those with the power are able to use it to exploit those without power or recourse. 

In what speaks to the relative strangeness of our times, speculation on new names for sports teams via trademark filing observations is now something of a pastime for sports fans, adjacent to the pastime itself. It happened with the now-Football Team of Washington, and is still happening as the team has yet to settle on a new long-term name: intrepid reporters dive into the USPTO database to uncover what trademarks the team’s ownership group holds and tries to suss out the most likely candidate for the new moniker. It’s as yet proved unfruitful for Washington fans, who will have to wait longer yet to learn what they will scream at their team as they squander yet another game.  

If there is anything that has been learned over the past few years of observing the portion of the internet wherein regular folks interact with one another, it’s that moderation and monitoring are hard but necessary chores incumbent upon the platforms that to this point have wanted all of the perks of an enormous user base with with a minimal amount of the responsibility. Hand-in-hand with questions about speech have come concerns about copyright, which as a statutory measure has served as no deterrent at all; if people know about copyright, they often simply don’t care. 

One of the paramount concerns of our time (among the seemingly dozens of them pressing down upon us at any given moment) is how to contend with the power of big tech. It’s something that every industry and sector has grappled with, although the matter has been something more existential for journalism and online publications. Where once the vast majority of the population paid for newspapers and magazines as one of the main sources of news, the shift towards everything being online has left most publications in something of a cash crunch, and left companies like Google as something of a hegemon when it came to how people got their news. 

Where exists the line between homage and infringement? It’s perhaps a too subtle a distinction at items, and one likely at the heart of many an intellectual property suit over the years. The winking nod to another work or product can be seen as a joke, or would be, if most corporations had a sense of humor when it comes to their IP. Alas, they do not, and the court system and our IP news is all the busier for it. 

There is perhaps nothing sadder and more telling of the innate flaws of human nature than the inevitable fight that often takes place upon the death of a popular and prolific artist. We’ve all seen stories of the genre: family is pit against record label over the rights to the now-deceased artist’s work, or worse still, family is given over to internecine fighting over those same rights. We’d like to think our own families would do better, but then again none of us can imagine either the talent involved in creating such work or the money and privilege now accessible to those in the artist’s orbit. We’re all good until such a point as we’re bad, in short.  

It’s hard to generate much sympathy for megacorporations, particularly at a time when they are bigger and more powerful than they’ve ever been, but there are instances where even they can garner something like sympathy among the broader public (or at least the public that follows intellectual property news.)  These massive companies aren’t necessarily popular, to be sure, but less popular still are the patent trolls that are seeking to make their living through frivolous, baseless lawsuits. 

A bedrock tenant in intellectual property law is being first to the post when it comes to filing for trademarks; otherwise, you and your business or project are simply out of luck, regardless of the primacy of your creation. That said, there is something to having a history and building brand recognition separate and apart from any IP considerations, and when it comes to the world of sport, few deal in history more than soccer and its composite clubs and federations. 

In writing about legal cases, whether they be in the sphere of intellectual property or falling anywhere else outside of it, it’s quite easy to spend your attention on the initial battle, ignoring the ongoing fight or the eventual resolution. Largely that’s a function of the legal system itself and the astonishing amount of time it can take a particular case to matriculate through the courts; beginning and end in many instances are separated by years, and repercussion and adjudication matter far less than the fact that the initial filing that’s been largely forgotten as well. 

One of the benefits, one might suppose, of being among the most famous people on the planet is that relatively few people are unaware of important facts about you. It's fair to say that LeBron James ranks among those people, as his mega-stardom has made him known and recognizable the world over, even in places not enraptured with the game of basketball, and among those who don't know the sport at all and would struggle to name another player. His brand is ubiquitous, to use marketing parlance, to the point that it's hard to imagine anyone might be unaware of it.

Few things sever any lingering connections to your childhood like the disillusionment with those things you once held in great esteem at that age. It's perhaps the root of much cynicism that people and organizations that ostensibly exist to support and nurture young people are eventually discovered to be flawed in ways great and small, and perhaps no organization embodies this more than the Boy Scouts of America. Once though of as a body that could instill positive values in young people, BSA has fallen far from that perch in the light of recent scandals, with the most damning being tens of thousands of claims of sexual abuse that came to light in recent bankruptcy filings.

To the extent that the internet is a net positive to the world at large (and after the last few years I am open to arguments to the contrary) one of its great gifts is the weird and funny mashups gifted to us by creative folks all over the world. Like peanut butter and chocolate, they take two great things and demonstrate they work well together, or at the very least are odd enough in their juxtaposition to provide the requisite humor. And many creators, for their part, either appreciate the love and creativity that goes into the mashups, or at least recognizes that the work is likely transformative enough to not be subject to a copyright infringement case.

One of the more salient points undergirding pitches for collective action on things like climate change is that we share this place we call Earth, not only with our contemporaries but with future generations. Both states and individuals can claim ownership of some portion of land or sea or sky, but true ownership ultimately eludes any such as us who are transitory figures on a body that has existed long before we arrive and will continue to exist after we've departed as a species.

Amidst the ongoing reckoning over America's largely shameful treatment of people of color, branding probably ranks as a secondary or tertiary concern, but it is a concern nonetheless. Changes in that arena aren't going to be as meaningful or substantive as changes to broader social policy, but there is a case to be made that we can't move forward, or even hope to move forward, until we make changes to the signifiers and reminders we see everyday without thought or consideration. Just last month, Cleveland's baseball team announced they'll be dropping the name "Indians" after over a century of use, after Washington's NFL franchise announced their own name change earlier in the year.

If you're a fan of the arts, a tradition on parallel with the dropping of the ball in Times Square which was admittedly eerie this year) is the ushering in of the unofficial holiday of Public Domain Day on January 1st.

You could be forgiven for thinking that the biggest thing going for the surname Hamilton is the Lin-Manuel Miranda-penned musical, a blockbuster of both stage (back when theaters were open) and screen (via a release on Disney+). But that would be a myopic view of both the world and pop culture, one that excludes the larger world of culture and sport. And in the interest in broadening all of our horizons, we're heading across the pond and into the cockpit for today's IP news.

Given what we've seen of how people can behave online, it's probably good and almost certainly necessary that some protections exist for platforms and internet service providers. That's not to absolve the likes of, say, Facebook from moderating what's posted on their site, or taking steps to prevent the violation of laws on the part of users to a reasonable degree; it's simply to note that even with the best efforts of these companies (which, to be clear, we almost certainly aren't seeing) there's not much to be done should people decide to do whatever they want, rules be damned.