By: Richele Ellison
Not only is the Super Bowl known for intense football and elaborate performances, it is also
known for its lively commercials. Marketing companies will tap big name, and sometimes
random, celebrities to appear in these commercials for a little umph. But, do they take it too far
when the featured celebrities are no longer alive? For a majority of public figures, their image
and likeness is their solitude. In particular, Prince, Martin Luther King, Jr., and Kurt Cobain
were all super protective of how their names and images were used when they were alive. Even
after death, each individual’s estate or other third-parties control how their “publicity rights”
and likenesses are marketed.
So, what do these three iconic figures have in common? They were all featured during the Super Bowl broadcast in contrary ways as to how they presented themselves during their lifetimes.
During Justin Timberlake’s Half-Time performance, he gave a mini-tribute to Prince by projecting a large image of Prince during his cover performance of “I Would Die 4 U.” This “tribute” was much to the dismay of Prince’s family, and Justin Timberlake did not get permission from Prince’s estate to use his image during the performance. Then how did he use it?
Basic publicity rights in most states will allow Prince’s estate to control any uses of his image, including for the Super Bowl. The estate might also have trademark claims and related unfair competition claims if any imagery of Prince is used to falsely imply sponsorship or association.
The actual image that Timberlake used, however, is from the movie “Purple Rain” which Prince starred in back in 1984. Prince does not own the rights to the movie, including any imagery of his likeness used within that movie. Prince almost certainly licensed all rights to his image for use in the movie, including downstream future uses.
Given the magnitude of the NFL and the Super Bowl, it is more likely that the movie studio licensed the right to this image, bypassing the Prince estate entirely. It may be against all of Prince’s wishes for his image, but legally speaking, it was out of his estate’s control.
Next up is the use of Martin Luther King, Jr.’s voice an speech to ... sell trucks!?
MLK’s image is iconic. His estate, particularly his now deceased wife, Coretta, has vigorously protected his name for nearly 50 years. To hear his voice and speech being used to promote a truck company was quite alarming and received much negative feedback. Especially since the “Drum Major Instinct” speech being used by Dodge left out the part about King questioning the virtues of crass commercialism (like selling cars and trucks)
So, how could Dodge ever get the rights to air this commercial. The King family objected to the request to use his name, voice, and speech ... right? This has to be a violation of Dr. King’s publicity rights, his copyrighted speech and his trademark voice ... right? Apparently not.
Dr. King’s publicity rights and related intellectual property rights are managed by the entity called “Intellectual Properties Management.” Through this entity, MLK’s estate did, in fact, approve the use of all of his IP rights for this commercial. No matter how tone deaf or tasteless Dodge was for creating this commercial – they had the legal right to make it and air it, with full knowledge and permission by the MLK family and estate.
Lastly, T-Mobile used an instrumental version of Kurt Cobain’s song “All Apologies” to... sell cellular phones.
In the commercial promoting T-Mobile, a lullaby rendition of Kurt Cobain’s “All Apologies” played over a sequence of infant babies.
While this commercial did not use his name or his image, its use of the music is contrary to the type of artist Kurt Cobain was.
The ethos of Nirvana’s music and message is antithetical to mass commercialism and advertising. Kurt Cobain routinely rejected requests to license his music, but his estate has since grown to be worth half a billion dollars after his untimely death.
Although T-Mobile most likely obtained the necessary and proper legal rights to use the the song, its rendition is may be considered inappropriate to fans who are aware of Kurt Cobain’s intention as an artist.
Would Kurt Cobain have agreed to license his music to a telephone company for a commercial if
he were alive? Of course not. Martin Luther King, Jr.? Not a chance. Especially given that Dodge
took his speech entirely out of context. Prince? Absolutely not, especially being that Prince was
famously protective of his name, his image, his music and everything he did.
To even consider the fact that these iconic figures were exploited during the Super Bowl is nothing short of disheartening.
Nevertheless, all three uses were also entirely legal. These uses are good examples to demonstrate that what is legal may not necessarily also be ethical or moral. Laws and ethics are in theory correlated, but as we see here, this is not always true.
By Natasha Jean-Pierre
Over the past five years, hashtags have been used on virtually all social media platforms
to promote, inform, and inspire others to be a part of the change they want to see. Hashtags have
found a permanent place in our society for social activism and justice. The #Blacklivesmatter
hashtag ignited a global campaign by highlighting the violence, racial inequality in the criminal
justice system, systemic racism, and police brutality that black people face in America.
In October 2017, after sexual misconduct allegations were made public about Harvey Weinstein,
brave and fearless women rocked the entertainment industry with #Metoo. These women
couragesly shared their stores about the sexual harassment and sexual assault they endured at the
hands of powerful producers, executives, and creatives. The #Metoo movement also allowed a space for women outside of the entertainment industry to share their experiences as well. #Blacklivesmatter and #Metoo hashtags have notably sparked movements that challenge thestatus quo. But how will these movements be affected when entities try to capitalize off thesesocial justice movements by trademarking these hashtags?
According to the Trademark Manual of Examining Procedure, Hashtags are registrable as a
trademark or service mark only if it functions as an identifier of the source of the applicant’s
goods or services. The United States Patent and Trademark Office (USPTO) also considers the
following when deciding to register a hashtag as a trademark:
• Placement of the hash symbol in the mark
• How the hashtag is being used
So what does this mean for hashtags such as #Blacklivesmatter and #MeToo?
It is likely that the USPTO will reject applications that attempt to trademark hashtags
from social justice movements. As of February 2018, 15 trademark applications for Black Lives
Matter have been submitted to the United States Patent and Office. Of those applications, zero
have been registered. The activists behind the Black Lives Matter movement have not only
renounced business incorporation but they have renounced trademark protection for the phrase.
To date, they have not attempted to privatize the phrase Black Lives Matter outside of the
acquisition of a domain name and use of the phrase for social media accounts. Under Trademark
law, an organization can own a phrase that is being used to identify that organization and
distinguish it from others offering the same or similar services.
Black Lives Matter may have had the potential to be trademarked during its initial inception in 2013 because it was not fully associated with a social justice movement at that time. As it stands today, it would be difficult or the original activist behind the Black Lives Matter movement and hashtag to
trademark the phrase. The phrase has become so diffused that it cannot refer to only one
organization and distinguish that organization from the countless others pursuing similar
goals and efforts. Additionally, no one has the right to police the use of the phrase.
In October 2017, Hard Candy, the beauty brand that is exclusively sold at Walmart
filed a trademark application for the mark “#MeToo” to sell cosmetics and fragrances. In
January 2018, when it was reported that Hard Candy was trying to secure the exclusive right to
use #METOO as a brand. The company was flooded with criticism on social media with people
from the global community accusing Hard Candy of being opportunistic and cavalier. Hard
Candy ultimately issued a public statement and voluntarily abandoned their trademark
Kristin Johnson, spokeswoman at Sprout Social, stated “Me Too and similar movements
are often about deeply human and personal stories — something brands simply can’t replicate”. I
agree. Trademarking a hashtag is a huge disservice to activist trying to empower and create a
space for the marginalized. But it is safe to say that corporations and entities who try to profit
from these social justice movements can ruin their reputation with a voice far more boisterous
than the USPTO and that’s the people of the internet.
By: Tyrone Hankerson
The controversy between Beyoncé and Blue Ivy has nothing to do with her daughter, but
instead, the owner of the Blue Ivy trademark. Veronica Morales is a wedding planner
whose company is infamously named Blue Ivy. She started her company back in 2009
before Blue Ivy (“Blue”), the person, was born to Beyoncé and Jay-Z. Given the
businessman and businesswoman nature of Blue’s parents, they quickly moved to
trademark their daughter’s name in a variety of trademark classes, but found opposition
in International Class 35 for advertising and business. Morales claims to have used the
mark dating back to 2009, but her application for federal registration was not initiated
until February 8, 2012—just one month after Blue Ivy’s birth.
There are two theories to this. The first is that Morales could be a trademark squatter.
Trademark squatting is a form of trademark infringement that occurs when a registrant
obtains a mark as their own in order to gain benefits from another source likely to use the
mark or from the real trademark owners. Some people have speculated that Morales,
having found out the name of Beyoncé and Jay-Z’s child, could have registered the mark
knowing they would seek registration. In this event, she either would garner attention to
her company or could receive some benefit from the Carter’s for relinquishing her rights
to the name.
The other theory is that she could have actually used the mark and enjoyed her common
law protections. However, in the wake of knowing Beyoncé named her daughter after her
company, Morales could have foreseen that she would try to trademark the name. As a
means of protecting her company’s name and avoiding litigation, Morales could have
filed to receive federal trademark registrations. This would have had to and did occur
before Beyoncé filed for the trademark. Because trademarks identify the source of the
good, Morales was able to show that Beyoncé’s application for the Blue Ivy trademark
would cause a likelihood of confusion for consumers by being associated her wedding
company with the products and/or services Beyoncé would offer in Blue’s name.
Beyoncé has since registered the trademark Blue Ivy Carter in various classes. However,
Morales has offered to sell the Blue Ivy mark to Beyoncé if she purchases her wedding
company outright for $10M. This proposal allegedly came in a meeting to settle the
trademark opposition dispute, but turned into a business proposal meeting. The mark still
remains with Morales, but Beyoncé’s legal team continues to seek ways in which they
may acquire and/or invalidate the Blue Ivy mark as owned by Morales.