Tag Archives: Copyright

#194: Slanting in Favor of Free Speech

This is mark Joseph “young” blog entry #194, on the subject of Slanting in Favor of Free Speech.

In January we looked at a trademark case that had much to do with freedom of speech and offensive language, in web log post #156:  A New Slant on Offensive Trademarks, in which Simon Shiao Tam named his all-Asian rock band “The Slants”, saying he wanted to use the normally derogatory word to reclaim some pride for his people.  The Patent and Trademark office, relying on the same law against offensive trademarks under which the Redskins sports franchise was stripped of its protection, refused the application, and it was ultimately appealed to the United States Supreme Court.  The Court has delivered its opinion in Matal v. Tam, 582 U.S. ___ (2017), and it has implications for freedom of expression.

The Slants performing April 16th at The Flying Dog Brewery, hosted by the 1st Amendment Society

On a related subject, freedom of speech was also behind Packingham v. North Carolina, 582 U.S. ___ (2017), which struck down a North Carolina law barring anyone on the state’s sex offenders list from accessing Internet social networking sites.  We’ll look at that after Tam.

There was really nothing at all surprising about the Tam opinion, unless it is that once again eight members of the court were in agreement.  Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas and Breyer.  Justice Kennedy wrote a concurring opinion, joined by Justices Ginsberg, Sotomayer, and Kagan, and Justice Thomas also wrote a concurring opinion.  All of them agreed on the essentials:  the so-called “disparagement clause” in U.S. trademark law which permits the denial of trademarks for anything that might be offensive to specific groups or persons is an unconstitutional infringement on free speech.

As Justice Alito puts it (slip opinion at 22), “Giving offense is a viewpoint,” then (slip opinion at 22-23) quoting from Street v. New York, 394 U.S. 576, 592 (1969), “…the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”  Justice Holmes and Ray Bradbury would be pleased.

It’s good news, too, for the Redskins football franchise:  this was the rule that got them stripped of trademark protection, and so their ongoing legal battle is probably about to be rapidly resolved.  I don’t know if we’ll see a run on offensive trademarks in the near future–after all, as some in this discussion have observed, offending potential customers is not a good way to sell them your product.  On the other hand, the way is open for people to denigrate a lot of groups.  (The decision does not impact the prohibition against using the name of a living person without that person’s permission.)

So, how does the Packingham case fit?

In 2002 petitioner Packingham, then twenty-one years old, had sex with a thirteen-year-old girl, and pleaded guilty to “taking indecent liberties with a child”, a crime that qualifies under North Carolina law as “an offense against a minor” requiring registration as a sex offender.  The status can last three decades or longer.

In 2008, the state passed a law making it a felony for anyone registered as a sex offender in the state “to access a commercial social networking Web site where the sex offender knows that the site permits children to become members or to create or maintain personal Web pages.”

It strikes me that this is a second punishment.  That is, at the time Packingham was convicted and sentenced, and required to register, there was no law regarding the use of the Internet.  Six years later this restriction was added to his sentence, without so much as a hearing to determine whether it was necessary.  That, though, was not the issue before the court, although Justice Kennedy recognizes the problem in passing.  It is also not stated that Packingham was informed of the new restriction, but that was not before the court either.

In 2010, eight years after his conviction, Packingham expressed his thanks to Jesus for an event in his life, the dismissal of traffic ticket without a hearing, posting this excitement on Facebook.  A Durham police officer managed to connect the Facebook post to the dismissed ticket, and obtaining a search warrant established that Packingham had violated the law.  He was convicted, despite making a motion that the law was a violation of his First Amendment right to free speech.  There was no allegation that his Internet communications were in any way suspect or criminal other than that this law forbad him from making them at all.

The conviction flip-flopped its way through the state courts, overturned by the Court of Appeals of North Carolina, reinstated by the North Carolina Supreme Court, not without dissent.  The United States Supreme Court reversed the conviction and struck down the law.

Again we have an effectively unanimous judgement:  Justice Kennedy wrote the opinion of the court, joined by Justices Ginsberg, Breyer, Sotamayor, and Kagan, while Justice Alito wrote a concurring opinion joined by Chief Justice Roberts and Justice Thomas.  Justice Gorsuch did not participate in the decision, not having been present for oral arguments.

Justice Kennedy’s core point was that the Internet generally, and social media sites in particular, had become the new medium for many kinds of protected speech–obtaining news, expressing political opinions, communicating with others.  It had in essence become the public parks and town squares of old, the place where people gather to interact.  To refuse someone access to the Web would be to curtail their ability to communicate in the modern age.  That is clearly a limitation on freedom of speech, and as such must face scrutiny–the level of scrutiny in which there must be a demonstrable compelling government interest addressed in the least invasive way possible.  The protection of children from sexual predators is so strong a government interest that it might be possible to restrict the freedoms of potential recidivists, but the North Carolina law goes too far.

The concurring opinion agrees that the North Carolina law goes too far, but objects to the court’s identification of social networking sites as having the importance suggested.  Rather, Alito would suggest that it might be possible to prevent sex offenders from accessing many sites where predators might easily prey on children, but the definition of such sites would have to be refined–tellingly, Alito notes that Amazon, The Washington Post, and WebMD all qualify as “social networking sites” under the definition in the statute, and that perhaps the majority of web sites now do, as they provide ways for visitors to communicate with each other through comments on articles, and frequently to create a member profile.  (The other two requirements in the statute are that they provide some sort of revenue stream to their owners and do not exist primarily to facilitate sales between users (e.g., E-Bay, Craig’s List).)

In any case, it appears that the Supreme Court has decided that your Facebook, Twitter, and LinkedIn accounts (they are specifically mentioned) are important protected media for the exercise of your free speech.  That means something.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]

#156: A New Slant on Offensive Trademarks

This is mark Joseph “young” blog entry #156, on the subject of A New Slant on Offensive Trademarks.

Anyone following the Redskins trademark dispute will be interested to know that the United States Supreme Court has agreed to hear a case that is going to impact that–not the Redskins case itself, but a case close enough in its content that a Virginia federal appeals court has put the Redskins case on hold pending the outcome of the present case.

The case, Lee v. Tam, involves an American rock band whose members are all Asian, who want to trademark their band’s name, The Slants.  The U. S. Patent and Trademark Office refused to register the name on the grounds that it was disparaging of Asian Americans.  However, the Federal Appeals Court for the Federal Circuit overturned that decision, stating that it was an unconstitutional impingement on free speech, concluding that the provision under trademark law forbidding such protection of any trademark which “[c]onsists of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is unconstitutional on its face.

The Patent and Trademark Office has appealed, and the Obama Justice Department has supported that appeal.

The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.
The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.

Simon Shiao Tam, founder of the band, argues that they took the name as a way of embracing their Asian heritage, and that it neither offends those Asian Americans who are their fans nor is intended to do so.  He also points out that “slants”, while popularly used as a racial slur, has other non-racial meanings (unlike “Redskins”, “Nigger“, and similar epithets).  Still, the question isn’t whether the word can be used in an inoffensive manner, but whether the government can deny a trademark on the grounds that some might take it to be offensive.

One of the arguments raised by the government is that the State of Texas won a decision that they did not have to permit a personalized license plate design which included the Confederate Flag.  There, however, the argument was that since the plate is an official government document issuing such plates would be as if the government were endorsing the use of that flag.  It is, perhaps, a weak argument–the government cannot legally be endorsing all the organizations which apply for such plate designs, many of whom have political or religious connections–but it is weaker applied to trademarks, as the Office has repeatedly asserted that the issuance of a trademark does not indicate endorsement of what it represents.

Against the government, enforcement of the rule has been uneven.  Numerous trademarks have been issued that include racial epithets or other offensive language.  If the government wins, many of those might have to be rescinded, and might end up in litigation.

Against The Slants, there is at least some reason for enforcement of a rule against offensive trademarks.  A broad decision here could open the door to a wealth of product names far more offensive to far more groups.  A narrow decision would probably have to take the line that whether the trademark is offensive must be determined in the context of whether the audience would perceive it so.  The slogan “Bring your bitch here” is probably not offensive if it is used by a groomer or veterinary clinic, but would be so at the entrance to a bar.  However, the harder case would be whether accommodations near the Westminster Kennel Club dog show could use that slogan to let breeders and trainers know that their animals are welcome in the rooms or dining areas.  Yet the court might here find that context matters and still rule against The Slants, since the question would be whether “slants” is an offensive Asian epithet and they are an all-Asian band.

Ultimately, though, as Ray Bradbury reminded us half a century ago, everything worth writing is offensive to someone.  Any effort to censor free expression in trademarks is doomed to failure, because the issue of what is and is not offensive is too subjective to legislate.

I am inclined to think that people who register and use offensive trademarks in order to be offensive will alienate potential customers and pay an economic penalty for it.  That should be a sufficient disincentive to the practice.  Otherwise, our high courts will spend a tremendous amount of time reviewing lawsuits over whether individual trademark applications are or are not too offensive under whatever standard is adopted.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Note that this form will contact the author by e-mail; to post comments to the article, see below.’ type=’textarea’ required=’1’/][/contact-form]

MJY Blog Entry #0005: An Image A.S.C.A.P.

This is mark Joseph “young” blog entry #0005, on the subject of An Image A.S.C.A.P..

At one time, if you wanted to hear music, you had very few options.  You could learn to make your own, have family or friends perform for you, attend a concert (either buying a ticket or attending one paid for by a government or arts patron), or hire musicians to provide it.  Technology changed that drastically, beginning with Thomas Alva Edison’s discovery that audio waves could be transformed into physical etchings and recreated as audio waves–the beginning of recorded music, the analog record.  At that point you could buy a Victrola and purchase originally cylinders and later disks on which musicians had recorded their performances, and you could listen to them whenever you wished.  (There were previously of course music boxes which provided a much narrower choice of songs and lower quality of tone, and player pianos and orchestrions, which were far more expensive and demanding to operate.  Recorded music was a game changer, and these others are now novelties.)  Musicians who once made money only by live performances now could make money by selling their performances to record manufacturers so that they could be heard by people who never saw them.

The game changed again with the advent of radio.  It was now possible for the operator of a radio station or radio network to play someone’s music for audiences which quickly went from hundreds to hundreds of thousands.  At first the Federal Communications Commission frowned on such stations playing pre-recorded music, and so music was mostly live concerts–but often such live concerts were also recorded and replayed later, so it was becoming a moot point.  Now a musician could be heard by many people from the sale of a single record–but the sale of a single record would never support the artist for even one day, and he could not produce enough records in a day to do that.  It was agreed that a radio station who played a recording by an artist owed that artist–and indeed, also owed the composer and the publisher–royalties under copyright law.  However, as the number of radio stations burgeoned and the number of available recorded songs multiplied, that was going to be a prohibitive issue.

A solution was found.  The American Society of Composers, Authors, and Publishers came into existence.  Now a musician simply registered his recording with the society, and the society negotiated with radio stations to collect royalties for airplay of songs.  The theory is that every time a radio station plays your song, you split a penny with several other people who also get paid (like your record company and, actually, A.S.C.A.P. itself).  Of course, it was not then possible for anyone to count how many times every song was played on every radio station, but A.S.C.A.P. had a simple solution.  Every week some sample group of radio stations–a different sample group each week–writes down every song it plays, and A.S.C.A.P. compiles these lists and extrapolates from them how many times each song was played on all radio stations in the nation.  Every radio station then pays a license fee to A.S.C.A.P. (there are numerous factors determining how much is paid, largely based on how many people are likely to hear it), and that money gets paid to the musicians.

The system has expanded over the years.  Today churches who wish to sing songs that are not in their hymnals without buying sheet music for everyone buy a license to print or display songs for use in services, and the composers, authors, and sometimes performers of those songs are compensated from that.  It certainly has been taxed by the development of file sharing and the Internet, but thus far it has managed to expand to meet the changing times.

I am going to suggest that it expand a bit more, or perhaps that it be imitated.

img0005camera

One of the problems on the Internet is that there are a lot of pictures–“images”, whether photos or computer drawings or scans of artwork–and that it is extremely simple to copy an image and use it somewhere else.  For most of us, that’s not a big deal–what little artwork might be labeled mine is of meager quality.  We would object to our personal photos being used in some corporate advertising campaign, but probably wouldn’t think twice about someone using something we drew somewhere else.  In fact, we frequently post and repost probably thousands of images per day on Facebook, knowing that they are gone beyond our control and we will never be compensated for any work we invested in them.  However, there are people who are dependent on being able to sell their images–photographers, artists, animators–and when we “steal” their work we are robbing them.  Often, though, we have no way of knowing whether any particular image we encounter is free to use as is, free to use in other ways, or something that requires the purchase of a license.

It might be argued that in a world in which everyone carries a digital camera in his pocket there is no longer a place or a need for professional photographers.  When was the last wedding you attended at which “a friend of the bride” did not shoot the pictures?  Photographers may be a profession of the past.

That is not necessarily true.  We do not get many photos from tourists visiting war zones, or admitted to peace talks or legislative sessions; for these, at least, we need professionals.  We probably need them for many other things.  If, though, we do not compensate them (not to mention others in the visual arts) for their work, they will be forced to cease doing it.  Yet it is a simple thing, a small thing, to use an image that you find floating out there on the web and float it a bit further, without any notion of its origin.  Is there a solution for this?

Certainly it is possible for photographers, artists, animators, and filmmakers to surf the web seeking their stolen images, and sue any offending web site; however, absent some clear indication that the thief was aware of the ownership status of the image, United States law only allows for an order to remove the image from the site.  Something more is needed for compensation.  Yet the tools all exist to launch something like A.S.C.A.P. for artists and photographers.  We already have systems monitoring traffic to various sites, so we know how heavily any site is visited.  We have “spiders” crawling the web, and Google has demonstrated the ability to identify images by subject matter.  Digital signatures can be implanted in images that alter nothing visible but make the image recognizable to such a spider.  Let’s let people who create such images sign their work digitally.  Then every company that provides web site hosting space can be required to buy a license on behalf of those whose sites are hosted on its servers, price based on server size and traffic volume, costs to be passed to those who build the sites.  Then if you happen to use a photo from an Associated Press photographer, or an image from an unfamiliar artist, or any other work on which someone holds rights, the system will count it and tell A.S.C.A.P. to compensate the owner.

It works for registered songs on the radio; why not for images?

I have previously written on copyright law, including Freedom of Expression:  Copyright and Intellectual Property.

[contact-form subject='[mark Joseph %26quot;young%26quot;’][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment: Please note that this form contacts the author by e-mail; for comments on the site, see below’ type=’textarea’ required=’1’/][/contact-form]