On Monday, the Supreme Court ruled that a law banning the registration of offensive trademarks was unconstitutional. The decision was a victory for the Asian-American dance rock band The Slants–and potentially the Washington Redskins.

Simon Tam, the band’s frontman, filed a lawsuit after the U.S. Patent and Trademark Office (USPTO) denied his application for a trademark for the name “The Slants.” The agency cited the Lanham Act, which prohibits trademarks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The court ruled in an 8-0 decision that the “disparagement clause” of the Lanham Act violates the First Amendment’s free speech clause. Justice Samuel Alito, who delivered the majority opinion of the court, said Tam chose the name of the band “to ‘reclaim’ the term and drain its denigrating force.” According to Alito, the ban on offensive trademarks “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The federal government had argued that trademarks are government speech, but Alito wrote to the contrary, saying “trademarks are private, not government speech.” Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer were in agreement on the majority opinion.

While the justices reached a unanimous judgement, they were split on why they believed it violated the first amendment. In a concurring opinion, Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, wrote that the measure in question constitutes “viewpoint discrimination.”

Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in January when the court heard the case.

The Slants celebrated the victory with a lengthy statement following the ruling. “The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination,” wrote Tam.

Tam said the band never considered itself a political group, but that “the establishment of an Asian American band was a political act in of itself.” As a result, the band has integrated activism into their work by raising awareness and funds for issues affecting Asian Americans.

“Music is the best way we know how to drive social change: it overcomes social barriers in  a way that mob-mentality and fear-based political rhetoric never can,” Tam said.

The Slants’ trademark case could also impact other controversially named groups like the Washington Redskins, which has been in jeopardy of losing its team name for being racially offensive.

In 2014, the Patent and Trademark Office canceled the team’s trademark because the team’s name is a derogatory term for Native Americans. The Redskins appealed the case, but the federal appeals court had delayed hearing it until the Supreme Court ruled in Tam’s case.

Redskins attorney Lisa Blatt said the Supreme Court’s decision “resolves the Redskins’ long-standing dispute with the government.”

“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Blatt.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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Update

The trademark–and public opinion–war over the Washington Redskins has been waging on for a while. But there’s a new development in the form of a ruling from an appeals court that may impact the Redskins’ ability to keep their offensive name. The U.S. Court of Appeals for the Federal Circuit in Washington, D.C. just struck down a provision of federal law that prevented the copyrighting of offensive names on First Amendment grounds.

The case in front of the appeals court involved a band called “The Slants,” an Asian-American group led by a man named Simon Tam who chose their name in an attempt to “reclaim” the traditionally-derogatory phrase.

The Slants, Asian-American band from PDX, can trademark controversial name, U.S. court rules https://t.co/AjahNdAxAW pic.twitter.com/b8QMi4hWLP

— The Oregonian (@Oregonian) December 22, 2015

The band became embroiled in a legal dispute after it attempted to file for trademarks; the United States Patent and Trademark Office (PTO) refused the filing. Particularly at issue was something called the Lanham Act, which was passed in 1946, and “prohibits registration of marks considered scandalous or immoral.” However, the recent appeals court ruling decided that parts of the applicable section (2a) were unconstitutional, stating:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional. Because the government has offered no legitimate interests justifying § 2(a), we conclude that it would also be unconstitutional under the intermediate scrutiny traditionally applied to regulation of the commercial aspects of speech. We therefore vacate the Trademark Trial and Appeal Board’s (“Board”) holding that Mr. Tam’s mark is unregistrable, and remand this case to the Board for further proceedings.

Obviously the case of the Slants and the case of the Washington Redskins are very different–one is a band using a racial slur in an effort to reclaim it, the other is a massive sports franchise using a racial slur despite its implications. Those nuances exist in a socio-political sense, but in a legal sense, the cases are very similar. The appeals court didn’t rule that the Slants could use their name because of the way they were using it, but rather because of First Amendment issues–ones that also could apply to the Redskins.

The Washington Redskins’ case is under review by the 4th Circuit Court of Appeals, and some legal experts have predicted that it may make its way all the way to the Supreme Court. Since the Lanham Act was passed over 60 years ago, a lot has changed, including the inception of Constitutional protection for commercial speech. But given that the Redskins’ case–which is based on very similar grounds–is making its way through the court system, the fact that another appellate court found that the applicable provisions of the Lanham Act were unconstitutional could end up being pretty convincing for the court hearing the appeal. Ultimately, the question of “offensive speech” as it relates to trademarks is far from being answered.

Update

In light of the Redskins’ recent win that garnered the team the NFC East title, the debate over the team’s name remains hot and heavy. I got the chance to talk about the case with Professor Robert Sherwin, who teaches at Texas Tech University School of Law, and is an expert in federal civil procedure and First Amendment Law. He pointed out that while this ruling may not necessarily persuade the federal judges in the Redskins trademark case, the fact that the U.S. Court of Appeals for the Federal Circuit in Washington D.C. accepted that part of the Lanham Act is unconstitutional–and was the first court to do so–is noteworthy. Sherwin also shared that this is likely “a big ticket kind of case” and an issue headed for the Supreme Court, although it’s yet to be seen which case the Supreme Court will decide to take on.

Sherwin also highlighted a similar First Amendment Case, decided by SCOTUS just last summer–Walker v. Texas Division, Sons of Confederate Veterans, Inc., in which the court decided 5-4 that the government wasn’t violating free speech when it rejected a Confederate Flag license plate design. However, in a move that surprised many, it was Justice Clarence Thomas who sided with the more traditionally liberal wing of the court to decide that it was not a First Amendment violation. Sherwin pointed out that both sides could use Walker in their arguments, and that the decision could hinge on Thomas, who is “probably the court’s foremost expert on First Amendment issues” when the case makes it the Supreme Court.

There’s a lot that’s up in the air right now when it comes to the Redskins’ name–the recent decision as it relates to the Slants may have only further muddied the waters. But one thing seems almost inevitable to many of us keeping an eye on these cases–this is something that the Supreme Court will have to weigh in on sooner or later.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Earlier this month, Aerosmith lead singer Steven Tyler became the third person this year to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. A month earlier, R.E.M. bassist Mike Mills voiced his displeasure at Trump’s use of one of his group’s songs and in June Neil Young asked Trump to stop using his music.

American presidential campaigns have a long history of using music to evoke emotions in audiences. It’s a practice that dates back to the early 1800s and possibly earlier, all the way back to George Washington. Perhaps the most famous example is Dwight Eisenhower’s “They Like Ike” advertisement, which yielded his famous campaign slogan “I like Ike.”

Over the past few decades, however, there’s been a growing trend among songwriters and artists who have come out against campaigns for using their music. The reasons for artists issuing cease-and-desist letters range from disagreeing political views or presenting an image of false endorsement to simply not wanting music played without their permission.

Securing the appropriate legal permissions to use particular songs on the campaign trail is not always enough. Copyright law and fair use are only part of the equation when it comes to a politician’s right to use music. Many states provide protections for famous artists in regards to their image and false endorsement. In fact, it is possible for a politician to legally possess the minimum permissions to use a song and still face a lawsuit from the artist. Read on to learn about the history of music in campaigns and the legal questions that come up time and time again on the campaign trail.

A Brief, Recent History of Campaign Music Fights

Reagan and Springsteen (1984)

As Ronald Reagan campaigned for reelection in the summer of 1984, much of the nation, and in turn Reagan’s presidential campaign, was swept away by Bruce Springsteen’s hit “Born in the USA.” Conservative columnist George Will made a claim to “Born in the USA,” calling it a patriotic, hardworking man’s anthem. Reagan quickly pounced on the opportunity to use the song in his campaign. He was promptly denied the rights to play the song but invoked Springsteen in a speech nonetheless. In a 1994 speech Reagan said,

America’s future rests in a thousand dreams inside your hearts. It rests in the message of hope in songs of a man so many young Americans admire: New Jersey’s own Bruce Springsteen.

The left responded by saying that Reagan and conservatives had misinterpreted the song, claiming that it was a form of protest against the changes that Reagan brought about. Democratic candidate Walter Mondale even believed that Springsteen supported him. However, the song was intentionally crafted to contain both arguments and to be a conflicting piece of music. Ultimately the piece proved to be about disconnection, not belonging to any side, and as a result, probably not the most appropriate campaign tune.

Bush, Petty, and Hall (2004)

The trend in bands and songwriters protesting the political use of their music greatly increased in the 21st century, particularly within the last several election cycles. In 2004, George W. Bush used the songs “Still the One” and “I Won’t Back Down” by John Hall and Tom Petty, respectively. Both artists took offense to the use of their songs for President Bush’s campaign. Hall, later elected as a Democratic congressman in New York, publicly noted that neither he nor his music supported Bush’s reelection efforts.

McCain, Browne, and Mellencamp (2008)

John McCain received several complaints from artists concerning his use of their music, most notably from John Mellencamp for the use of “Our Country,” and  Jackson Browne for “Running on Empty.” Browne went so far as to sue the McCain campaign claiming that the usage of the song was not only without permission, but it also suggested that Browne supported the McCain campaign. As a Democrat, Browne naturally objected to supporting the campaign in any way. McCain would eventually settle with Browne and apologize.

Palin and Heart (2008)

Sarah Palin, John McCain’s running mate in 2008, faced a backlash from the band Heart for her use of their song “Barracuda.” Ann and Nancy Wilson (the band’s lead singer and guitarist), asked the campaign to stop using its music, noting, “Sarah Palin’s views and values in NO WAY represent us as American women. We ask that our song ‘Barracuda’ no longer be used to promote her image.” Despite their desire to be left out of the campaign, the use of their song continued, most notably at Palin’s introduction at the Republican Convention in 2008. After its repeated use, the sisters issued a statement saying,

The song ‘Barracuda’ was written in the late ’70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.

Charlie Crist and The Talking Heads (2010)

During his senate campaign against Republican candidate Marco Rubio, Charlie Crist used the song “Road to Nowhere” by The Talking Heads on his campaign website and in video advertisements. The group responded with a lawsuit that culminated with Crist issuing a formal apology.

Walker and the Dropkick Murphys (2012)

Both Wisconsin governor Scott Walker and Speaker of the State Assembly Jeff Fitzgerald used the Dropkick Murphys cover of “I’m Shipping up to Boston” at tour stops in 2012 for their campaigns. The band responded to Fitzgerald’s use of their song at the Wisconsin GOP Convention by comparing it to the use of a gangsta rap by a white supremacist.

In 2011, Scott Walker led a campaign to eliminate collective bargaining rights for most state workers, which led to a massive backlash from pro-union organizations and Democrats. A recall election was held in 2012 in which Walker retained his post. Earlier this year, Walker played the same song prior to his speech at the Iowa Freedom Summit resulting in a backlash from the band. Dropkick Murphys, a notably pro-union band, tweeted their response:

@ScottWalker @GovWalker please stop using our music in any way…we literally hate you !!! Love, Dropkick Murphys

— Dropkick Murphys (@DropkickMurphys) January 25, 2015

Obama, Moore, and Lauper (2008 and 2012)

The Obama campaign faced some backlash from Sam Moore, of the band Sam & Dave, for its use of the song “Hold On! I’m Comin'” at rallies. Moore objected to the use of his song by the Obama campaign because he had not publicly endorsed Obama’s election bid, noting that his vote is a private matter. However, Moore did send a letter to Obama proudly noting the historic nature of his campaign.

In 2012, the Obama campaign used Cyndi Lauper’s song “True Colors” in an ad criticizing Mitt Romney and his record. While Lauper was not a Romney supporter, she did not agree with the use of her song in a negative advertisement.

When Can Campaigns Use Music?

To use music in advertisements (television and internet), a campaign needs to receive legal permission from both the song’s publisher and the artist’s record label. The use of music at a live campaign event requires a “public performance” license, generally attained from one of the United States’ performing rights organizations. These organizations track the use of music and help distribute royalties from such events.

Technically, campaigns do not need to receive explicit permission from the artist to use their work, but it should be noted that even if a politician has all the requisite legal permissions the artist can still sue the campaign. The author(s) could make a claim to their “Right of Publicity,” which is a legal protection many states give celebrities and artists. The right of publicity generally protects the use of someone’s name and likeness for commercial reasons. However, this right is not yet nationally recognized. On the federal level, the Lanham Act protects an artist’s trademark or brand by offering protection against false endorsement in which the use of an artist’s work can imply the artist’s support. Politicians and their campaigns also need to acquire proper licensing from the publisher, record label, and venue.

What About Fair Use?

One of the most crucial pieces of U.S. copyright law, created to ensure the protection of free speech, is the doctrine of fair use. Fair use is defined as the copying of copyrighted material done for a “limited and ‘transformative’ purpose,” which may legally be done without the artist’s or license holder’s. However, fair use is loosely defined and limited by various court decisions.

There are two general categories of fair use. The first is commentary, in which a copyrighted work can be used in limited instances to provide examples and clarity–this is most commonly seen in scholarly works. The second category of fair use is parody, in which large sections of an original work may be copied and used in a satirical manner. When fair use claims make it to court, judges employ a four-point test to evaluate how the material was used and what the consequences were. Fair use claims are particularly strong when the use was for educational or informative purposes, or when the original work has been significantly modified to create something new.

When used to set a mood or accompany a politician’s platform, the use of music on a political campaign is generally not protected under fair use. The parody of a popular song for a campaign may constitute fair use, but otherwise artists would still be entitled to the protections established above. Although campaigns are not often afforded fair use protections, these claims are looked at on a case-by-case basis. While there may be some cases in which fair use protects campaigns, generally speaking, that is not the case.

Conclusion

Musicians’ recent outcry against the use of their work for political campaigns is nothing new. However, the number of complaints issued by artists has grown significantly over the past election cycles. These issues may have arisen over the evolution of the fair use and its interpretation in the courts, particularly for music and film. However, it is important to note that political campaigns often do not meet the transformative requirements to constitute fair use when playing music at events or in advertisements. Even if the proper licenses are granted by publishers and record labels, the performing groups themselves may be entitled to protections under the right of publicity and the Lanham Act, meaning their permission is essentially required as well.

In short: if you want to use a song to promote your campaign, talk to the song’s artist, and his or her record label first.

Resources

ASCAP: Using Music in Political Campaigns: What you Should Know

Daily Kos: When Politicians use Music Without Asking Permission

Jefferson R. Cowie: Stayin’ Alive: Book 2, Chapter 8: “Dead Man’s Town”

USA Today: Candidates Carry a Tune on Campaign Trail

BBC: Aerosmith Protest over Trump Campaign Using their Hit Dream On

The Guardian: REM blasts Donald Trump for Using their Music in US Presidential Campaign

NY Times: In Choreographed Campaigns, Candidates Stumble over Choice of Music

Time: A Brief History of Campaign Songs

Boston: Wisconsin Recall Battle Finally Goes to Voters

Kevin L. Vick and Jean-Paul Jassy: Why a Federal Right of Publicity Statute is Necessary

Stanford University Libraries: What is Fair Use?

Cornell University Law School: The Lanham Act (15 U.S. Code), Subchapter III, Provision 1125: False Designations of Origin, False Descriptions, and Dilution Forbidden

Battlefield Sources: 1952 Eisenhower Political Ad – I like Ike – Presidential Campaign Ad

HardMusicTV: Bruce Springsteen vs Ronald Reagan

Law12345100: Charlie Crist Official Apology to David Byrne for Copyright Infringement

Samuel Whitesell

Samuel Whitesell is a graduate of the University of North Carolina at Chapel Hill having studied History and Peace, War, and Defense. His interests cover international policy, diplomacy, and politics, along with some entertainment/sports. He also writes fiction on the side. Contact Samuel at Staff@LawStreetMedia.com.

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