Braves, Barves, And Intellectual Property Law
An object lesson in the problems with our intellectual property laws
Matthew Yglesias passes along this story about a baseball fan who tried to turn an online joke meme into a business idea, only to run up against the ever-protective Intellectual Property lawyers that work for Major League Baseball:
Everett Steele is an Atlanta Braves fan. He goes to games, he wears Braves apparel, he tweets about the team to his 16,000-plus Twitter followers. He’s a big enough fan that when he started noticing people misspelling the team’s name as “Barves” online, he spent time and money making it a meme.
Steele started making Barves jokes on Twitter, and others quickly joined in. So he and his wife, who jointly run a social media marketing firm, began printing t-shirts featuring the joke team name and selling them on the internet. Being a fan and a community-minded guy, he decided to donate all proceeds to the Atlanta Braves Foundation, which supports nonprofits around the Atlanta metro area.
Seems harmless enough, right? Beneficial, even, to have a superfan turn a joke into financial support for good causes? Not to Major League Baseball, it doesn’t. Within a few days of the first local media stories about the Barves products, the Steeles received a cease-and-desist letter from the league for infringing on the trademark it holds over a script team name (no matter the spelling) above a tomahawk.
Yglesias comments:
This is a reminder that beyond economics, there’s a substantial freedom issue involved in these intellectual property cases. It’s conceivable that if Steele were to try to litigate this that he’d ultimately prevail on first amendment grounds. But in practice that would be very expensive, so any firm large enough to have lawyers on retainer has a lot of latitude to intimidate people with cease-and-desist letters. And yet this kind of thing never seems to make it into things like an Index of Economic Freedom or get denounced as a form of tyranny. But by even the narrowest negative liberty conception of freedom, a law saying that you can’t print a T-shirt with a “BARVES” logo on it is a substantial restriction of liberty.
This is a well-taken, and there is a possibility that Steele would be able to prevail in litigation with the defense that the “Barves” concept is a parody, which is generally considered permissible even when it is direct rip-off of someone’s copyright or trademark. Parody, for example, is the reason that Weird Al Yankovic is legally permitted to make his own versions of songs by artists ranging from Michael Jackson to Coolio. Yankovic has always had a policy of asking permission before releasing a parody, but legally, he most likely wouldn’t be required to do so. Similarly, one could argue that Steele’s “Barves” t-shirts are a protected parody even though they use the same script-and-tomahawk design that the official Braves logo does. Of course, Steele likely doesn’t have the resources to fight Major League Baseball in United States District Court, which is why these cease and desist letters are typically so effective. When you’re given the choice between stopping what you’re doing immediately or trying to defend yourself in Court against a team of lawyers from one (or more) of the biggest law firms in the country, there are few people who are going to be able to afford the fight. That’s not to say that MLB and the Braves might not have a good legal argument of their own, but so does Steele, only because of the cease-and-desist letter we’ll never know what the legal answer to the dispute actually is. Perhaps it’s good business, but it’s bad public relations and a bad way to treat the fans on whom your entire business model depends.
The other issue that this story brings up is how short-sighted businesses can be sometimes. Steele clearly wasn’t trying to cut in on the market for authentic Braves merchandise with these t-shirts. He was trying to make a something out of joke that had gone viral on the Internet. Moreover, the proceeds would have gone to a charity linked to the Atlanta Braves. Instead of strong-arming a fan like this, one would think that the Braves and the powers-that-be would see this as an opportunity to generate some goodwill with the fans. However that isn’t how copyright and trademark owners think. Instead, they view something like this as a threat because of the precedent it might set, and they use the threat of major, expensive, federal litigation as a cudgel to get what they want even when they might not even have a legal right to stop the activity in question. It is, in other words, yet another reason why our Intellectual Property laws need to be seriously reexamined.
My assumption here is that MLB and the Braves are going through the motions necessary to protect their trademark. My understanding–and this could be pure urban legend, with no legal basis whatsoever–is that companies who don’t do so risk losing the right to legitimate protections of their trademarks.
In this particular case, you’d think MLB would grant some sort of limited license to the guy, since the money is going to a worthwhile charity supported by the team.
I don’t know who or what is “responsible” for things working this way, but on some level it makes sense to me. If MLB or the Braves don’t pursue intellectual property claims when it’s arguably beneficial to them, they run the risk of having that used against them when they’re pursuing someone who is actually causing them harm.
This strikes me as a symptom of our society purging the use of judgment by people in authority to prevent them from abusing their power. While our legal system is subject to this problematic approach, it’s not the source or cause of it, IMHO.
@James Joyner:
That is a concern, obviously, although the whole question of when a copyright or trademark is considered “abandoned” is rather unclear under current law. Certainly, I would think that a single instance like this would not be sufficient.
As you said, though, a non-exclusive license or some such thing would seem to work to both parties satisfaction. The thing I’ve noticed, though, is that this is one area of the law where, once the lawyers get involved, the odds of compromise become fairly slim
Good Lord,if this is sustained, the porn industry is in big trouble.
Good blog post.
FWIW, my suggestion to improve those laws is to put in mandatory as opposed merely to discretionary attorneys’ fee shifting provisions. If you do that there will be attorneys out there willing on contingency bases to take on the Braves of the world on behalf of the likes of Everette Steele. It wouldn’t be a panacea. But it would help prevent IP owners from shaking down with impunity the likes of fair users, parody purveyors, derivative inventors, etc.
I hope my t-shirt idea for a FROWARD design doesn’t run into similar problems.
The urban legend I heard (was that the widow of Theodore Giessel (Dr. Suess) never, ever wanted to see Suess characters animated for television or film. She was forced into licensing, though, when lawyers convinced her that if SHE wasn’t profiting for the material, it was abandoned, and others could proceed willy-nilly. Better to do it yourself and retain control.
Always seemed sad to me. And it would have saved us from Jim Carrey as the Grinch.
MLB has always been vigorous to a fault about protecting their property, and it’s always related to being able to profit off of it. Remember that they have Youtube videos pulled regularly so that they can resell their views on their own proprietary network. That in itself is not exceptional, but they are by far the most vigorous about their walled garden, whereas leagues like the NBA and NHL partner up with Youtube.
@John Peabody: An urban legend, maybe, but certainly untrue. The books were in print and selling — clearly the properties hadn’t been “abandoned.” Under this argument, I could go out and make a movie of Catcher in the Rye, since its copyright owners had abandoned the book by not seling it for a film…
@James Joyner: As a practicing trademark attorney, I appreciate MLB’s need to “control” its mark at the risk of having subsequent infringers argue that MLB allowed its marks to become diluted and less closely associated with MLB’s teams, but James is correct that the MLB could address that by requiring Mr. Steele to take a license that would subject his use to MLB’s oversight and control. Killing ants with sledge hammers is neither creative nor complimentary to trademark holders which ultimately depend on the goodwill — not bad will — their marks generate.
@Boyd: I once read about a restaurant in Washington that had the name “Olympic”. They had to change it. There are some people who think that the tiger paw emblem is a trademark of their university and can’t be used.
@Boyd:
Right idea, wrong reason. The purging of judgement is strictly to protect those in authority from being held responsible for their mistakes – “Don’t blame _me_ for strip-searching that 8-year-old! The rules say I _have_ to!”
(@WR….certainly. What I heard was specifically for film rights…but it still might all be untrue)
“Instead of strong-arming a fan like this, one would think that the Braves and the powers-that-be would see this as an opportunity to generate some goodwill with the fans.”‘
Why would MLB generate good will with the fans when it’s only obligation is to itself–to maximize its own utility? While I will agree that generating good will is probably a desirable trait, it is really only the users and parasites who will benefit from that generation of good will. A business that does pretty-much sellout business on a limited event schedule will not be able to charge more from the possession of that good will and the fans who already use the service don’t need the good will.
If the Braves organization chooses to waste some of its resources to benefit the parasites, that is a choice that it can make, but there is no incumbency on the part of the full organization to follow suit. Doug, how can you be so selfish as to imply (or state outright) that MLB is wrong to protect itself against future predators?
I live in a county where there is a tiny (under 1000 sq ft) health food store with the name Whole Foods. They have been sitting, waiting, for years for the Austin TX-based Whole Foods Market to throw them a few million for the rights to a common name in the county. Today I have to drive 40 miles to a Whole Foods as know in the rest of the country (only source of Icelandic lamb in September-October). .
We have a broken system.
Disclaimer: I’ve been a shareholder in WFM (WFMI) for 20 years – spend no more there that I get in dividends.
@James Joyner: I can vouch for the fact that years ago, when I worked at Xerox, there were two lawyers who worked full time on protecting the trademark “Xerox” lest it get turned into a generic noun or verb. They came around once a year or so and gave us a nice talk on how it was especially important that Xerox employees never use the name that way. They also said they spent most of their time writing to television show producers, dictionaries, etc. They had no animosity towards them but needed court-worthy proof they were vigorously enforcing their trademark. Because, as they explained, if you don’t enforce it, you can lose it. Just ask the Escalator company.
Even more bizarre IP story, Tim Tebow now apparently thinks he owns the idea of Jesus: http://sports.yahoo.com/blogs/nfl-shutdown-corner/report-tebow-sues-maker-jesus-y-jets-t-223401489.html
@Joe Murphy: Aha, good catch. Dilution rather than genericide issue.
I’m sort of surprised that, if this is as common a mistake as indicated, that one side or the other didn’t trademark BARVES in the first place. But no trademark under that name is in the USPTO database. So it’s a common-law trademark and we know what case law is like on that…
(The stuff surrounding the names of sports teams and good will and all that makes this area of law particularly opaque.)
@Stormy Dragon: Actually, it turns out what Tebow is squawking about is the seller using Tebow’s name (without permission) on his website to sell the “Jesus” tee-shirts.
So not as loopy as it first sounds.
@John Peabody: Not to mention the movie version of The Cat in the Hat.
However, that did lead to a classic line of film criticism: “They might as well have skipped the hassle of securing licensing rights and simply called this mess ‘Mike Myers: Asshole in Fur.'”
@Doug Mataconis: Oh, and Doug? Abandonment doesn’t have a bright line rule, but three years of non-use of a trademark provides a presumption of abandonment. The messier problem is dilution and genericide of part or all of your trademark. (I just read a case where an injunction got quashed because the similarities between the trademarks was considered a generic part of the name.)