Like basic copyright, the core of trademark law strikes a reasonable balance. But trademark too is being pushed out of its equilibrium. Federal law has recently expanded to prohibit “dilution,” or uses that weaken the distinctiveness of famous marks, even if no one is confused. So everyone wants to be “famous,” and brand owners often claim that even parody or critical references dilute their brands, as when Mutual of Omaha chased down anti-nuclear

 

The First Amendment is part

of our protections: where

trademarks are part of our

surroundings, we’re not

forced to shutter our cameras

or censor our speech.

Illustration by Damien Correll

protesters with “Mutant of Omaha” T-shirts. But federal law is clear that noncommercial uses cannot dilute. And trademark hasn’t all gone to the dogs. The makers of Chewy Vuitton munchable handbag-toys and Timmy Holedigger dog cologne both managed to shake the infringement and dilution claims made against them.

 

PUBLICITY

Celebrities are part of the cultural conversation of craft, too. If your commercial crafting depicts recognizable people, you might have to contend

with the right of publicity, a trademark-like right to control commercialization of celebrities’ names and images. Like trademark, this right is countered by our First Amendment rights to talk about our culture. Courts have struck the balance by trying to determine whether a use is artistically transformative (good) or merely exploitative (not good).

It’s not always a clear call: silk-screened Three Stooges T-shirts were deemed insufficiently transformative in California, while lithograph prints of Tiger Woods poised mid-swing at the Masters Tournament in Augusta, Ga., were protected as “artistic” in Ohio. If you’re trying to assess which way your commercial work leans on the scales of justice, you should aim to trade not on a celebrity’s image, but on your own creative expression and commentary, in which celebrity images play a bit role. If Warhol could do it, so can you!

The core of trademark helps crafters too, protecting against consumer confusion in the search for quality products. But sometimes big trademark holders need to be reminded of their limits, particularly if your product is non-confusing, or is a parody that gets greater First Amendment leeway. As Judge Alex Kozinski, chief of the Ninth Circuit U.S. Court of Appeals, put it when ruling in Mattel v. MCA Records that the band Aqua didn’t infringe Mattel’s trademarks with their song “Barbie Girl”: “The parties are advised to chill.”

 

Wendy Seltzer is a fellow with Harvard’s Berkman Center for Internet & Society and a visiting professor at Northeastern Law School. She leads the Chilling Effects Clearinghouse ( chillingeffects.org).