Suchergebnisse

As Bruce Springsteen and Ronald Reagan, Jackson Brown and John McCain, and Tom Morello and Paul Ryan can attest, the exploitation of creative works for political or commercial purposes that run contrary to artists' ideals can stir passions and trigger lawsuits. Yet for performers who are not authors of the exploited works, there is little meaningful legal relief provided by the federal Copyright Act. Instead, such performers--from featured singers and dancers to actors and other personalities known for their distinctive traits--have leaned on alternative theories for recovery, thereby raising the specter of liability outside of copyright law for such unwelcome uses. While a rich body of literature analyzes and critiques the use of publicity rights in these contexts, the vindication of performer rights through the Lanham Act and related state law has received far less attention. Furthermore, though courts in such cases have frequently ruled in tandem on right of publicity and trademark/false endorsement claims, jurists and scholars have given insufficient independent analysis to the particularities of the latter. This Article seeks to address this void by focusing on performers' efforts to seek relief under the Lanham Act and related state law for unwanted uses of their creative output in promotional contexts and by considering alternatives for redressing performer concerns in a manner that better protects the public domain and balance in the intellectual property regime.

On June 19, 2017, the Supreme Court sent shockwaves through the bedrock of trademark law with its decision in Matal v. Tam. Justice Alito's majority opinion declared the disparagement clause of the Lanham Act unconstitutional due to viewpoint discrimination. Two years later, on June 24, 2019, in Iancu v. Brunetti, the Court continued to shake the foundation of trademark law by declaring the immoral and scandalous clause of the Lanham Act unconstitutional due to viewpoint discrimination. Both the Tam and the Brunetti Courts, however, provided no enlightenment for practitioners regarding whether trademarks are commercial speech. By failing to answer this crucial question, the Court left open the issue of available limits on the government's restrictions on speech, or if there are even limits at all. This Note argues that the law should treat trademarks as commercial speech. The Central Hudson test for intermediate scrutiny is appropriate for identifying a compelling government interest that is related to trademark restrictions at issue. Otherwise, a strict scrutiny analysis of trademarks jeopardizes a vast majority of the United States' signature trademark act: the Lanham Act.