Opening Day Read: Baseball Mascots and the Law

Just in time for Opening Day 2017, Attorney Christian H. Brill and Prof. Howard W. Brill have published a comprehensive examination of legal disputes involving mascots and America's national pastime.

"Baseball Mascots and the Law" discusses a variety of legal questions involving mascots, such as:

• Can a Dayton Dragons fan sue if she was distracted by a mascot’s performance when she was injured by a foul ball?
• Do the actions of an “unofficial mascot” tarnish the protected trademarks of the Chicago Cubs?
• Can a Pittsburgh Pirates mascot be fired for disparaging comments posted on social media?
• Does the arrest of protestors burning a Cleveland Indians mascot effigy violate free speech rights?

Originally presented at the 27th Cooperstown Symposium on Baseball and American Culture at the National Baseball Hall of Fame and Museum in Cooperstown, New York, the article covers such areas of law as tort law, intellectual property law, and employment law.

The entire article is available from the Kansas Law Review.

Trademarks that Disparage

The United States Supreme Court recently heard oral arguments in Lee v. Tam, a case involving the denial of a trademark registration for an Asian American band called The Slants. The U.S. Patent & Trademark Office ("USPTO") determined that the mark would violate the Lanham Act, which prohibits registration of trademarks "which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."

From the Washington Post:

The [USPTO] said the name was likely to disparage a significant number of Asian Americans. But founder Simon Tam said the point of the band’s name is just the opposite: an attempt to reclaim a slur and use it “as a badge of pride.” 

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendment’s guarantee of free speech. The government may not “penalize private speech merely because it disapproves of the message it conveys,” a majority of the court found. 

The outcome of the Supreme Court case is likely to affect the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause. 

Justices questioned how the Lanham Act's restrictions on negative marks should be balanced with constitutional guarantees of free speech, and what limits should be placed on the USPTO when presented with potentially offensive marks.

A decision is expected later this year.

Blog Roundup: Star Wars and the Law

What does this week's much-anticipated opening of Star Wars: The Force Awakens have to do with the law? Perhaps more than you expect.  In fact, quite a few legal scholars and attorney bloggers have explored how the epic franchise illuminates many different aspects of the law, including the following.

Property Law: Who owns the rights to the blue lightsaber owned by Anakin Skywalker, collected by Obi-Wan Kenobi, given to and lost by Luke Skywalker, and apparently seen in trailers for The Force Awakens?  From The Legal Geek:

Yes, fans might want to know where that lightsaber is, but for that matter, who actually owns the lightsaber? For that answer the lightsaber must be analyzed through the intricate lense that is property law. 

Tax Law: Can tax policy change the galaxy?  From the BNA Federal Tax Blog:

Before there could be a clone war, a Skywalker losing some limbs in a light saber duel, a Death Star, a Death Star blowing up, another Skywalker losing a limb in a light saber duel and another Death Star blowing up, there was—and, believe me, the Star Wars fan in me wishes I was making this up—a tax controversy. 

Criminal Law: Can Darth Vader be held responsible for murder, false imprisonment, burglary, or other crimes? From The Findlaw Blotter:

The first scene in Star Wars opens with Darth boarding Princess Leia's ship, looking for stolen structural plans of the Death Star. The crime of burglary is defined as the unauthorized breaking and entry into a building or occupied structure with the intent to commit a crime inside. Vader and other Imperial troops, like common thieves in the night, blast their way on to Leia's ship with the intent of stealing the Death Star's plans. 

Constitutional Law: How is the creation of Star Wars like the creation of constitutional law? From scholar Cass Sunstein:

[T]he composition, and its multiple twists and turns, tell us a great deal about the nature of the production of narratives in general, including those that have many authors, such as constitutional law. 

. . .

Whether Jedi or Sith, the authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes. 


Check back soon for our next post exploring judicial opinions involving Star Wars.