PictureBranding: it does a celebrity body good.
The pro-activeness of certain pop-culture icons (or, as will be apparent a little later on in this post, “imminent” pop-culture icons) never ceases to amaze me. The trademark aspirations of many of these starlets takes the whole go-getter ethos to a whole new level. Just in the past few years, we’ve seen such tendencies on full display through Taylor Swift’s campaign to register “This Sick Beat” for, well, everything under the sun, to Beyoncé’ and Jay-Z’s attempt to register  their baby’s name (“Blue Ivy Carter”) for a line of baby accessories. The latest in a line of ambitious pop star trademark registrations appears to be Angela Renee Kardashian’s (a.k.a “Blac Chyna”) filing of a trademark application to register her full married name for various advertising and entertainment services. The motivation appears to be a reality TV show that she plans to produce with her fiancé, Rob Kardashian.

The sequence of events usually goes like this: A celebrity writes a song, does a media interview, or marries another celebrity (who may or may not be famous solely because of their name). The celebrity makes some unique, whatever (or not so unique, in the case of “This Sick Beat”) that the media quickly seizes upon, spreading it far and wide. Because the celebrity is well-known, their name is associated with the unique word/comment/symbol without much effort by the celebrity him/herself. The phrase may even be incorporated into a viral YouTube video, or acquire its own hash tag, like Charlie Sheen’s #winning rant (in reality, this wasn’t really a winning trademark strategy as Sheen hasn’t yet obtained his registration). Either way, the celebrity will have no problem acquiring the goodwill that other trademark owners may have to pay hundreds of thousands (or millions) of dollars to acquire.

My touchdown dance is so cool, I couldn't post it on my blog.
This is a follow-up post to a musing from last week regarding the protection of a person’s likeness as a type of trademark (because a person’s identity and interesting quirks can have source identifying capabilities). In that post, we learned that a person’s traits could be valuable in the marketplace because the trait (whether it be the moonwalk dance performed by a musical artist or the “dirty bird” performed by an athlete upon making a big play) can be used to identify the personality associated with it, which can in turn be used by a media company (be it a video game developer or a maker of toys) to signify authenticity or advertise endorsement. Indeed as courts have held, while trademark law protects the public’s interest in being free from consumer confusion about affiliations and endorsements based on the inclusion of a person’s likeness, this protection is limited by other considerations such as first amendment, and free speech concerns especially where a particular work through which a likeness is conveyed is classified as an expressive work (such as a video game, move, or play).

Since writing that post, a prominent court (the 9th Circuit Court of Appeals in California, a court that routinely deals with intellectual property law issues) handed down a ruling that gamers love but major organizations like the NFL hate. The case is interesting for the balance it strikes between protecting an individual’s right to publicity (which is distinct from protecting a person’s likeness) and protecting the first amendment interests of the public in being allowed to use authentic representations of characters in media. By looking at this balance, we can more clearly see what trademark law truly protects. Here’s a hint: it’s about more than just a dance.

First, some ground work. Video games nowadays are pretty darn realistic. They have to be, right? After all, who wants to watch a bunch of pixelated blobs grunting up and down a simulated field that is a flat green polygon lacking any texture, with smaller pixelated blobs cheering in a sea of still more cheering blobs? That would just be lame. So game developers (to take advantage of faster computers and more robust graphics support) develop games with increasingly realistic graphics. E.A. Sports is no exception. In fact, in developing football games, E.A. sports sends out multifaceted questionnaires to NCAA and NFL team equipment managers in order to obtain information on a player’s equipment of choice. To obtain the rights to use the numerous logos, football stadiums, team colors, and of course the players in the games that EA produces, EA enters into licensing agreements with the NFL and NFL Players Association.

Some people are undoubtedly cool peeps. They have tens of thousands of twitter followers, they wear the latest and greatest, and they do endorsement commercials for Subway and Verizon. If you are a cool peep, you probably make appearances in video games like Guitar Hero or the latest installment of Madden NFL. Those appearances include you, in all your pixelated glory, doing the moonwalk or making calls from your cellphone during a touchdown dance. Is it so outrageous to think that your character in these appearances is protected by a trademark?
When you think of trademarks, you generally think of words or symbols attached to particular companies right? Okay, so the occasional celebrity who has decided to attach their name to a line of perfumes and clothing (see Kim Kardashian, Justin Bieber , or any other number of pop-star turned teenybopper idol with merchandise). Sure there is a motivation for this caliber of social star to get trademark protection for their name so they can make those glittery perfumes and woodsy colognes and sell backpacks and the like. But what about mere pop culture figures that aren’t even trying to make their name a household phrase? Can just being the public eye and having certain traits attributable to you as a person be enough to yield trademark protection?
Managing Intellectual Property recently published its list of the 50 most influential people in intellectual property and some of the candidates might shock you. In America, Tim Tebow and Angelina Jolie made the list, along with a host of people who you might expect to be on the list of influential figures, you know, like judges, lawmakers, and prominent I.P. attorneys involved in major lawsuits.
Tim Tebow and Angelina Jolie? Intellectual property innovators? Obviously the pair didn’t make the list for their contributions to major patent legislation or their involvement with the latest copyright case between YouTube and a major media company (pick a media conglomerate, any media conglomerate). So the tie-in must have been trademark law.
Indeed it is. Tim Tebow was cited for his preeminence as an athlete who has exploited his talents and fame through branding and trademark protection. As the author of this article pointed out, the attempt by athletes in general to protect their names as trademarks raises questions about ownership, what constitutes a trademark, who controls the mark, and the scope of the monopoly right by one person to a particular name. Could one of these questions be whether a person can get a trademark based on their persona? I find the question about what constitutes a trademark particularly interesting, specifically personas and the extent to which a trademark can be obtained as a result of a persona.