No One Said It Would Be Fun

Carla Ulbrich is an extremely talented singer-songwriter. In her song “If I Had the Copyright,” she speculates about how rich she would be were she to own the copyright on the word “fuck.”

How will I ever educate the world about intellectual property when a self-described professional smart aleck disseminates false information?

“What false information is conveyed in Ms. Ulbrich’s song?” I hear you ask.

Well, first, one cannot get a copyright for a single word. So there’s that. And if you have a copyright on a work titled “Fuck” that would not result in a royalty payment each time the word is spoken.

For example, Lady Crush owns the copyright on the song “Fuck” and no one is paying her a royalty when they articulate their feelings about the number 7 train.[1]

“Perhaps the song should have been titled ‘If I Had the Trademark’,” I hear you suggest hoping to shut me up.

‘Fraid not. Aside from completely destroying the song’s meter, having trademark rights in the word FUCK still wouldn’t result in royalty income sufficient to allow one to “retire on Brooklyn alone.”

There are currently five live applications to register the word “fuck” as a trademark.[2] If and when one of those becomes a registration, it doesn’t mean you’ll have to pay the owner a royalty for dropping the F bomb. It just means you can’t use it as a brand to sell goods or services that are similar to the goods and services in the registrations.

Truth is rarely as entertaining as Ms. Ulbrich. Such is life.

 

 

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[1] Title 17 USC §106: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

[2] As of October 16, 2018, there are applications to register FUCK for: alcoholic beverages; clothing; snow globes; and toys.

FUCT is Not

Last week you could not register the trademark FUCK. Today you can.  If that’s all you wanted to know, you can stop reading, but you’ll miss a pretty cool story.

Here’s how it went down.

There’s a statute that prohibits registration of a trademark that “Consists of . . . scandalous matter; or matter which may disparage” a group of people.*

Earlier this year, the U.S. Supreme Court heard a case brought by Simon Tam. Mr. Tam is the front man for an Asian-American rock band called The Slants. The Trademark Office refused to register THE SLANTS because it was disparaging to Asians. The Supreme Court ruled that it’s an impermissible restriction on speech for the government to refuse registration on that basis. Mr. Tam and The Slants were able to register and rock on.

Waiting in the wings was Mr. Erik Brunetti. Mr. Brunetti had been trying to register his clothing brand FUCT. He was refused registration because FUCT is a naughty word and therefore “scandalous.”

The Supreme Court’s ruling focused only on the “disparagement” part of the statute, so we have all been waiting to hear what the Court of Appeals for the Federal Circuit (CAFC) would say about FUCT which implicates the “scandalous” part of the statute.

On Friday, we found out. Along with Mr. Brunetti’s application, the following applications will now move forward:

  • NAMASTE AS FUCK
  • HIPSTER FUCK COFFEE
  • POLITE AS FUCK
  • FUCK RACISM
  • FUCK FEAR
  • FU CANCER

It also means that Work Release Records, Inc.’s application to register CERTIFIED STREET NIGGAZ, which the Trademark Office said was both disparaging and scandalous, will move ahead.

That’s all you need to know, but here is the most hilarious bit from the decision: The government argued at one point that the statute is constitutional because the government has an interest in “whether or not its examiners are forced to decide whether one drawing of genitalia is confusingly similar to another drawing of genitalia.” [Opinion at page 30]

 

And here is the majority’s inspiring conclusion:

“The trademark at issue is vulgar. And the government included an appendix in its briefing to the court which contains numerous highly offensive, even shocking, images and words for which individuals have sought trademark registration. Many of the marks rejected under § 2(a)’s bar on immoral or scandalous marks, including the marks discussed in this opinion, are lewd, crass, or even disturbing. We find the use of such marks in commerce discomforting, and are not eager to see a proliferation of such marks in the marketplace. There are, however, a cadre of similarly offensive images and words that have secured copyright registration by the government. There are countless songs with vulgar lyrics, blasphemous images, scandalous books and paintings, all of which are protected under federal law. No doubt many works registered with the Copyright Office offend a substantial composite of the general public. There are words and images that we do not wish to be confronted with, not as art, nor in the marketplace. The First Amendment, however, protects private expression, even private expression which is offensive to a substantial composite of the general public. The government has offered no substantial government interest for policing offensive speech in the context of a registration program such as the one at issue in this case. We hold that the bar in § 2(a) against immoral or scandalous marks is unconstitutional because it violates the First Amendment. We reverse the Board’s holding that Mr. Brunetti’s mark is unregistrable under § 2(a).” [Opinion at pages 41-42]

Yay trademarks! Yay freedom!

 

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*USC Section 1052(a)

**Matal v. Tam, 137 S. Ct. 1744 (2017).