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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Hillary, hey, Aughie.
J. Aughenbaugh: Good morning.
H. Miller: Hey, yeah.
N. Rodgers: How are you all today?
J. Aughenbaugh: Lovely. Thank you.
H. Miller: Doing good.
N. Rodgers: We're doing good because we're not involved in this lawsuit we're going to talk about today. We are on the sidelines of this amusement. To start and let our listeners know we are recording a podcast on the United States Supreme Court, not the musical group. United States Supreme Court hearing a case from Jack Daniel's versus VIP products. It seems silly to me. I want you all to tell me why it's not silly. Because it seems silly that anybody would mistake a chew toy for a dog named Bad Spaniels, for a bottle of whiskey aged in barrels in Tennessee called Jack Daniel's.
J. Aughenbaugh: Hillary, do you want to jump in this or do you want me to go all legalese right at the get-go?
H. Miller: Well, I would say I want to start without the legalese and for anyone who hasn't actually gone and seen a picture or something comparing these two products are steins the marketing the text on the dog toy. The reason it seems so silly on the surface, I think is because of how silly the product is. Bad Spaniels, the old number 2 on your Tennessee carpet. But it's got that same bottle shape. It's got that same fancy flourishing font from the Jack Daniel's bottle that just elevates the whole joke of a dog taking a crap on the carpet. I think that's the funniest thing you said. We're lucky that we're not involved in this case, but I really wish I could have been in the Supreme Court when they were doing these oral arguments because reading some of the transcript is so funny the things that they were bringing up and talking about having the justices having to bring up. This is as I saw one, describe the scatological humor. I'm actually, I think makes it seem so very silly and probably did to them at the time as well.
N. Rodgers: Isn't it a squeeze toy? I think it makes noise.
J. Aughenbaugh: It is.
N. Rodgers: That's the other thing I would be sitting in court it would be hard from me.
H. Miller: Someone bring it is like squeeze.
N. Rodgers: My gosh, I would be doing that to hold to argue we'd have to throw an elbow to make me stop because that would be like squeeze.
J. Aughenbaugh: Chances are if you did that, you would be thrown out of the Supreme Court. I'm pretty sure that justices would take a vote and not allow you ever back into the court.
H. Miller: Squeaking in their hallowed chambers.
J. Aughenbaugh: Yeah.
N. Rodgers: But not to go number 2 on your carpet. Is it pretty clear. It's a joke. It's a parody.
J. Aughenbaugh: It's a parody of the Jack Daniel's infamous trademark. For those who are not bourbon drinkers, the Jack Daniel's bottle is instantly recognizable and that's what they trademark. We've had Hillary on the podcast previously where she discussed great length for us novices about patents and trademarks. How Jack Daniel's apply for and receive from the federal government a trademark, license or protection, if you will and the federal law in question is the Lanham Act, L-A-N-H-A-M Act, which was the federal government's attempt to go ahead and bring some clarity regularity to corporations wanting to get trademark protection. It's not just Jack Daniel's and bourbon makers, it's a wide array of corporations, which we discussed in a previous podcast episode. But there is an exception in the law for parodies. That was in part what was at issue in this case because there were two questions. the court, when it took the case wanted answered. One, if whether a humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act, traditional likelihood of confusion analysis.
N. Rodgers: It's one of those tests.
J. Aughenbaugh: It is one of those things.
N. Rodgers: Lanham Act is a test. Hillary, you may not know this, but we have done episodes in the past on tests that the Supreme Court tries to apply in order to say, this is like obscenity. There's tests for that. There's tests for all things so that they can have a better judgment about the Lanham Act as a test of confusion. Are you likely to mix these two things up? Is that when people make knockoffs of like purses that have instead of the 2Cs facing outward, they face inward or whatever and that's how you know it's not a, I can't remember which brand it is. I'm sorry, I'm terrible with luxury brands but anyway, that's how you know it's not that is because they're facing a different direction, but they're breaking the Lanham Act by trying to look like. They're trying to confuse the issue is that.
J. Aughenbaugh: As we discussed in the previous podcast episode, what that usually then leads to is one or both of the companies in question doing market surveys where they tried to establish that a large percentage of potential customers either confused the two products in violation of the Lanham Act. Or if you're the company who has the knock-off, or in this case, a chew toy parody you try to go ahead and argue, nobody is going to go ahead and confuse a chew toy with Jack Daniel's.
N. Rodgers: Because one of those is going to be a lot more expensive than the other one, and one of those, you're not going to feed to your dog, unless you are a horrible pet owner. You are not regularly or in whiskey down your dog's gullet. Anyway, the numbering, the scatological humor. The numbering is that jack Daniel's is numbered number 7 or number whatever it has to do with their.
J. Aughenbaugh: The batch that they made in which barrels the batch was in? Yes.
N. Rodgers: The number 2 thing obviously is eight-year-old boy humor.
J. Aughenbaugh: It is a scatological reference.
N. Rodgers: I don't know. I think that's a little silly.
J. Aughenbaugh: It is silly. But as we were talking before we began recording, probably the larger, if you will legal constitutional issue, some serious questions about the first amendment. Congress is basically saying what the Lanham Act, that there are trademark protections for certain corporations and we can even get into this politicians campaigns, if you will, campaign slogans, etc. That others who want to engage in free speech, which would otherwise be protected by the First Amendment, cannot infringe upon. That's the tension. How do you go ahead and protect a trademark and all that that it stands for versus individuals like VIP products who made the chew toy who want to go ahead in parody Jack Daniel's for dog owners.
N. Rodgers: But Hillary, didn't they put on the back of the bottle we have nothing to do with Jack Daniel's or something. Obviously.
H. Miller: They did.
N. Rodgers: It would be better language because it would be written by a lawyer. We don't have anything to do with Jack Daniel's.
H. Miller: But it was just about that straightforward. I think it was meant to appeal to this rate like reasonable person who would be reading the bottle, it doesn't even sound very legalese to me. I think they were showing that they were really doing their due diligence there too, because that's another aspect of some of the tests that the courts have looked at is, are you purposefully trying to confuse people or are you not doing that, There's no intention to confuse. I think with that statement, they made it really clear they weren't, which probably helped mass all the way.
N. Rodgers: It helped them get through the case that far.
H. Miller: I think that's the other interesting thing here too, is there's these major tensions, of course, between the First Amendment and then trademark protection. But at each of the levels going through this, there's also this debate about which tests does even correct to use. It's not just the Lanham Act or First Amendment. It's specific precedent that has been set over time in different court cases and how different circuits have interpreted it. It's always more and more complicated.
N. Rodgers: Is that how we end up in front of the Supreme Court is because it's unclear from the various courts.
J. Aughenbaugh: Yeah. In part.
N. Rodgers: I would not think that this would make the level of the Supreme Court, you know what I mean? This doesn't seem like a thing that would go that high unless it was some divisive something that they're trying to solve.
J. Aughenbaugh: John Roberts and Lena Kegan we're instructed their clerks to look for a humorous case to break the tension of the [OVERLAPPING].
N. Rodgers: I'm considering how tense they've been lately. This might be like a legal massage for them.
J. Aughenbaugh: Again, studying the court as long as I have most of them, if they do have a sense of humor very well bear buried. But Hillary, you brought up something that I think is pretty fascinating and I think it's one of the reasons why the Supreme Court took in otherwise silly case is that the history of this case really shows the tension between a trial court in an appeals court. This case arose in the Ninth Circuit, which covers listeners, basically the West Coast states, California, Washington, Oregon, Hawaii, Alaska. The trial court found in favor of Jack Daniel's and rejected the VIPs corporation claim that what they did was part of the Lanham Act, fair use defense. If that didn't cover it, the First Amendment protected their expressive speech. The trial court held that the Spaniels toy was not an artistic or expressive work, therefore, do not receive First Amendment protection.
N. Rodgers: Which may also hearken to our Andy Warhol?
J. Aughenbaugh: Yes.
N. Rodgers: That may go, there may be some tie there with, right with. Can you use someone's image? Artistically, he may be able to get away with it because it was artistic versus this was theoretically what commercial they're seeing. This is purely commercial. They're saying it's not artistic. This toy. Which, let's be honest, dog toys really are. I don't know that I would have relied on its artistic as my defense so much as I would have relied on the First Amendment ability to parody people
J. Aughenbaugh: Freedom of expression.
N. Rodgers: If you put yourself out there, I should be able to make fun of you.
J. Aughenbaugh: But VIP appeal to the Ninth Circuit Court of Appeals, Ninth Circuit Court of Appeals reversed the trial court and then send it back to the trial court to hold a new trial.
N. Rodgers: Does that ever work out in the winners favor because that seems like that would piss off the lower court. I'm sorry, I shouldn't use that language. Seems like that would annoy the lower court.
H. Miller: This may be the right episode to use that language.
J. Aughenbaugh: Well played, Hillary.
N. Rodgers: Well played, Hillary. But when the court above you reprimands you by sending something bagging and saying, No. You need to take another look at this. It's like when a parent says, I don't think that's the right answer on your homework and slides the paper across the page, across the table, instead of telling you what's wrong, they want you to try to figure out what's wrong. Does that ever work? Does that work in people's favor or is that it seems like that would hurt you if that happened.
J. Aughenbaugh: The courts and politics studies are mixed knee on whether or not the trial courts dig their heels in and either openly ignore the appeals court or tries to find another justification to support their initial judgment.
N. Rodgers: I have to say I'm petty and that's what I would do.
J. Aughenbaugh: But it was funny. On remand, the District Court refused to use the Ninth Circuit Court of Appeals controlling precedent about whether or not a parody of a trademark would likely confuse consumers. It applied a different standard.
N. Rodgers: To Hillary's point of many standards were used.
J. Aughenbaugh: The District Court actually ruled in favor of VIP, but then concluded by basically sending a message to the appeals court and what it basically said was, I don't know if I have like an exact quote or not. But it basically said that it would be impossible for a trademark holder to prevail under the Ninth Circuit Court of Appeals precedence in applying the Lanham Act. Which is what probably Jack Daniel's, even though Jack Daniel's lost on remand, that's all the Jack Daniel's wanted to hear from the district court. We want some lower court to go ahead and say that the appellate courts precedence are so weighted against the trademark holder that they use that as their wedge to go ahead and file an appeal with the Supreme Court.
N. Rodgers: Jack Daniel's loses?
J. Aughenbaugh: Yes.
N. Rodgers: They appeal.
J. Aughenbaugh: Yes.
N. Rodgers: The appeal court says, you got a point and sends it back to the trial court. Trial court finds four VIP again but in a different way.
J. Aughenbaugh: Let's get the chronology. In the original trial, Jack Daniel's wins.
N. Rodgers: I misunderstood.
J. Aughenbaugh: VIP appeals to the Ninth Circuit nine roles in favor of VIP. The company that created that chew toy, sends the case back down to the trial court. The trial court does a new trial roles in favor of VIP. Since you've already used this word in this particular podcast episode, the trial court gets a little pissy because it goes ahead and rules in favor of VIP. But then makes a statement to the effect that under the Ninth Circuit Court of Appeals precedents, a trademark holder will more than likely always lose if for no other reason because of the First Amendment.
N. Rodgers: It's Snipes?
J. Aughenbaugh: It was a snotty car opinion.
H. Miller: It's interesting to point out, it says, they actually called back to all the other cases and you have to wonder what these ones are about. Maybe it was the silliness of this case that gave them this move to really just go off. They said in seven cases in which the Ninth Circuit has applied this same test, it has never once found a mark irrelevant. Under this test of whether it's something is expressive than it counts under the First Amendment. It's just one-to-many for them. They said I can't believe you're still calling this bottle, making a joke about dog poop, artistic expression under the First Amendment. This is too far for us. It's actually hilarious then to just in the politics of what's going on.
J. Aughenbaugh: Basically, Jack Daniel's made a claim that the Ninth Circuit Court of Appeals was ignoring the explicit language of the federal law. I love this quote to be sure everyone likes a good joke. But VIPs profit made a profit-motivated Joe confuses consumers by taking advantage of Jack Daniel's hard-earned goodwill.
N. Rodgers: Not sure hard-earned goodwill applies here, but okay. What they have is, and let us be fair, Jack Daniel's has an international reputation for making fine alcoholic beverages. They are relatively expensive comparatively, and they are high-quality. That's like a recognized thing. They have that reputation. But I'm not sure how in danger that is by a squeaky toy. If you confuse those two things, I'm not sure we should let you out in the world. I don't know, that seems, well, anyway. But I also understand that Jack Daniel's has a brand to protect. They're trying to say, we don't make squeaky toys. We don't want to be associated with squeaky toys and we certainly don't want to be associated with squeaky toys that announced on the front scatological humor. If they probably they hadn't put that sentence on the front of that squeaky toy, they might not have been in nearly as much trouble with Jack Daniel's. I don't know.
J. Aughenbaugh: Who's to stay. The three of us think it is pretty funny.
N. Rodgers: Clearly somebody Jack Daniel's does not.
J. Aughenbaugh: Again, listeners, I encourage you to go back to the previous episode there we had Hillary on and she spoke about this. Part of the tension with the Lanham Act is, how do you go ahead and protect commercial interests, while also at the same time, protect freedom of speech found in the first amendment. In the lines get blurry here. A lot of it does depend on what tests courts used and in here we ready to go ahead at the time that we are recording this particular podcast episode, the Supreme Court has already heard oral arguments in the case. The court has not issued a decision yet, but they did hear oral arguments.
N. Rodgers: I want to ask Hillary a broader question before we get into the specifics of what happened at the court. Hillary in a capitalist society, won't trademark more companies trademarks always be like the defendant thing because if you value making money over anything else, if you value capitalism over anything else than protecting a brand, I would think would be the default position culturally in the society.
H. Miller: I was doing a workshop recently actually with some art students, design students, interior design and other visual designers talking about issues of it was more about copyright. But one of the key takeaways I was talking to them about, is there a lot of cases where you may have something copyrightable. The bottle, the design of this bottle, which is what I started out talking about where you see there's this distinct shape of the bottle. There's this particular color scheme, There's this particular font and design that's used and they copied those elements. There's probably there's copyrightable elements, creative elements in this bottle. But what I talked to this class about is that honestly it's going to be easier. It's absolutely easier to go after trademark in some of these cases because there's money on the line and people just care about it more. The luxury brands you were talking about, they almost certainly have these creative, copyrightable elements in their work but when they want to go after people who are copying their work, they go with trademark because it's just heavier hitting, and I do think that that culturally has to do with what you're talking about, that there's money on the line and you're going to have more weight behind you if you're going with trademark versus copyright. I don't know enough to say in the trajectory cases have we seen things skew more in that direction but I certainly think if this had been a copyright issue, it would have turned out. They wouldn't have been making [OVERLAPPING].
J. Aughenbaugh: Particularly because with copyrights, the body of law in regards to fair use of copyright is so well-developed. If you will clear historically, whereas with trademarks there isn't as much. To be quite honest, the courts in this country have been all over the proverbial map in regards to what gets emphasized or privileged. Do we privilege the commercial interests or do we privilege, if you will, the freedom of expression. But with copyright law, because of the fair use exception and the fact that the courts have been relatively consistent in regards to fair use and it's so well-developed. There isn't as much money in suing to protect one's copyright as there is with trademarks. Hillary spot on. But Nia to your question, it does reflect the heavy value, significant value placed on commercial enterprise in a country like the United States.
N. Rodgers: I would think that the true point of this issue is at least to me, is Jack Daniel's does not want to lose money. They don't want to have their brand, what we call diluted. Yes, they don't want to have that route. Exactly. Or they don't want to have people say Jack Daniel's, that's a brand that does all crazy stuff. They're like, no, when you see that bottle, we want you to think fine whiskey. We don't want you to think anything else and that seems that's what they're trying to defend here and VIP's like, dude, nobody is going to mix those up.
H. Miller: I wonder that there's also a situation where they also just don't want anyone else to get a piece of their piece so to speak. Great. Because when I'm thinking over, I think it's a funny joke. I think it's parodying the sear it and it's almost parenting it so perfectly that the fact that they brought their lawyers to show how serious of a whiskey company they are that they can't take this joke, just makes the parody that much funnier. But I totally lost my train of thought there.
N. Rodgers: You think that they might be losing money because maybe they could [OVERLAPPING].
H. Miller: It's not that they're losing money, it's just that they're sort of big grudging in a sense someone else actually, they mentioned the goodwill. They don't want because when I was thinking about this toy, I was like you could just make a dog toy that's shaped like any liquor bottle and doesn't reference this, and that's not going to sell in the same way actually, if you go to their website, they do this with all different beer brands and liquor brands and fine toys. It's not just Jack Daniel's. It's their particular niche way into the market. If they were just making up their own, it probably wouldn't sell as much. There is an argument to be made that their place in the market as a maker of joke parody products is dependent on the fact that Jack Daniel's has established this world-wide reputation so they don't want them right.
J. Aughenbaugh: There's also another side that. Jack Daniel's doesn't make just bourbon. If you go to Jack Daniel store, or you go to the website you can buy a whole bunch of other Jack Daniel's merge. Potentially if Jack Daniel's ever wanted to go ahead and extend its reach into, say for instance.
N. Rodgers: Dog toys. They be competing in the market for their own brand
J. Aughenbaugh: Now during the oral arguments in front of the Supreme Court.
N. Rodgers: We have arrived at oral arguments.
J. Aughenbaugh: But Hillary, I know you read some of the oral arguments. Where were you in impressions of the oral arguments because I read them all the time and I always like it when somebody who doesn't have a lot of experience actually reads or listens to the oral arguments?
H. Miller: I thought it was so funny. Nia, you mentioned something earlier and I said I'll save that point for later. But you were asking, do you think it would have been even that offensive the fact that they chose to make the joke about Number 2. I was like the justices got into that hypothetically wondering if it had been a Number 1 joke instead of a Number 2 joke. Where would we be right now? Because they always pose these questions of what if this story happened? What if this would have happened? That was one that come up.
N. Rodgers: That's a grown adult, older people talking about Number 1 versus Number 2, which is something you use when you're talking to small children about what they need to do in the bathroom.
J. Aughenbaugh: Yes.
H. Miller: But I think it was, who was it?
J. Aughenbaugh: Yes.
H. Miller: Carlito. How likely was it that again this reasonable person might think that if it was talking about Number 1, that there was a joke about urine being in?
J. Aughenbaugh: Yes.
H. Miller: Would people start to think, that's actually a joke about Jack Daniel's being dark urine? Would that be a different case here?
J. Aughenbaugh: In what was really fascinating to me is and almost every analysis I read supports my conclusion on this. The three liberal justices quite clearly thought the Nice Circuit got it wrong. Kagan, Sotomayor, Brown Jackson, were all asking questions that were largely supportive of Jack Daniel's position.
N. Rodgers: That's interesting. I would not have thought that.
J. Aughenbaugh: They thought it was basically settled law and that the Nice Circuit Court of Appeals got it wrong.
N. Rodgers: That's funny. I would have guessed they would be for an upstart little guy, first amendment, any argument. They're like, Nope.
H. Miller: I think because they were saying this isn't. Was it Kagan who was pointing out? This isn't an artistic statement. It's a commercial utilitarian product. It's a dog toy. It's not artistic.
J. Aughenbaugh: What VIP was trying to do was make money off of a well-known, if you will, brand, in this case, Jack Daniel's. She said that's quite clearly covered by the Lanham Act. Alito, on the other hand, was the one who kept on exploring with Jack Daniel's attorney, who was, by the way, one of the best-known Supreme Court advocates, Lisa Blatt. He kept on exploring with her. Might this not confuse the average consumer? She walked right into abate dialogue where she was just it won't confuse you, Justice Alito, because you're a smart person and you got a law degree. He went ahead and once again took a jab at his law school. He goes, I went to Yale, but I didn't learn any law. He's like said this three or four times during [OVERLAPPING] on the Supreme Court. I'm like really, Lisa, why did you go there? The same Alito has no love for his law school. But it was fascinating because he was just like, this could be confusing to the average American. That almost begs a different discussion among the three of us.
N. Rodgers: About the educational system in this country and what we've done wrong.
J. Aughenbaugh: But we hinted at this in our previous podcast episode because Hillary, you, and I got into this really technical discussion about the confusion analysis, How do you establish for a court that somebody else's use of your copyright, for instance, or your trademark would be confusing in the marketplace. You've got these competing surveys. Then they get into questions about who got surveyed. Is that likely consumers of your product versus the average consumer, etc? The oral arguments to me was just really fascinating because you didn't see the normal ideological split and you saw it's just some really interesting exchanges between the attorneys and the Justices.
N. Rodgers: I want to say that it's not unreasonable for any person to think that Jack Daniel's might sell parody stuff of their own products unless your impression of Jack Daniel's is, they take them, they are the serious brand. It might just be the preferred whiskey that you'd like to get drunk on, on the weekends and you're not thinking that so you're not taking them as seriously as maybe they're taking themselves and it certainly wouldn't surprise me that any company might make parody products of their own materials. I think there's an argument to be made there that yes, I'm sure someone might think that Jack Daniel's. Then I hear this all the time when I'm again talking copyright with art students. Where do you fall on this really just vague general principle? Is it okay to use other people's stuff or not? I think more and more and to counter the reasonable person, I just hypothesized about a lot more people these days are thinking, yeah, of course, you can. I'm not doing anything. I'm not doing anything wrong. They put it out there. It's okay. It's in the public domain, in this very non-legal sense that they're thinking about what that means. It's out there. Of course, it's okay for people to use and play with and do with what they will.
J. Aughenbaugh: To not gum up the works even more for our discussion. Think about what artificial intelligence apps.
N. Rodgers: Create a whiskey bottle, but with dog humor and scatological humor. It would come up with this, but it wouldn't take very long before this bottle would show up and you'd go, that's brilliant. But I take Kagan's point that it's different when it's art. When you're talking to art students and they're making an artistic commentary, they paint the president with Bozo the clown hair because they're making commentary on how they feel about the president. But they get the president's face dead on. That's still art. That's still a question to me. I know that's what we're going to eventually talk about with the Warhol stuff is that question of art versus not art. When they released their opinion. But this is a little different, I'm with Kagan in that, this is a more utilitarian. They are making money off of a product. That is, they didn't do anything artistic to it except add the dog and the humor and the scatological humor. But the general basis of the toy itself was already developed as a piece of art by Jack Daniel's and built over time as a recognizable. When you walk into a liquor store, you can scan the shelf and quickly find Jack Daniel's. It's a visually known thing.
J. Aughenbaugh: Nia, let me ask you this. With your example of an art student who wants to go ahead and express, shall we say, an opinion about a particular politician, for instance, where's the line between an artistic expression or a political opinion and something that is infringing upon that person's trademark?
N. Rodgers: I know that I draw the line in a ridiculous place and I know you're going to tell me that in just a moment. I'm okay with that. I draw the line at, did you do it for money? Are you making money or are you making a statement? Because to me, if you release that piece of art out into the wild as this is my personal meme. How I feel about the president right now. I'm not making money off of it. That's one thing. I think the line here is these people made a commercial toy, they made a thing that they are trying to make money from.
J. Aughenbaugh: Then two points.
N. Rodgers: Of course. Hillary, feel free to defend me here if you'd like. I'm fine with that. If you're on Aughie's side feel free to stay silent and not pile on.
J. Aughenbaugh: Good point. By your standard, as long as they don't take money, they're good. But if they take any money whatsoever, okay.
N. Rodgers: You can't sell that painting.
J. Aughenbaugh: In other words, it's all right to go ahead and engage in trademark infringement as long as you remain a starving artist.
N. Rodgers: Yes. Copy the Mona Lisa as long as you don't sell it. I know that's a ridiculous. But for me it's a line somewhere.
J. Aughenbaugh: But Point 2, you are then now suggesting that anybody who makes money can have fun while they are making money.
N. Rodgers: No, I'm not saying that. Hillary, this where you step in and help.
H. Miller: I'm probably going to step in it at this point. I was going to say, I think I feel like maybe I have a unique perspective to add to this as a dog owner. But as a dog owner who loves puns and who frequently makes this exact joke that has been made part of this product. I actually think it's really creative. I think humor is creative. Maybe it seems small enough that it wouldn't necessarily reach this level of artistic stuff. But I'm talking like I'm mixing dog puns into whether it's liquor or book titles or song titles, all the time as a game. I think it's actually pretty creative, even though they're making money on it. They are, I talked about this earlier, it's their own fun way of existing in the market of dog toys is to be making jokes and puns. I normally have somewhere around the line of you right up thinking about whether or not you're making money. I think it has bearing on the situation, but in this case, I don't know where I stand on that, but I think this is funny.
N. Rodgers: I think the toy itself is hilarious and I'm not mad.
H. Miller: I think I'm saying, I think it rises to the level of expressive enough to be protected. I'm on this hang-up of except the whole underlying problem here is that it is totally a commercial toy making money off. I don't know where I stand on it. I don't want them not to be able to do this.
N. Rodgers: Neither do I. Again, I'm a dog owner.
H. Miller: Yeah.
N. Rodgers: I hear you on that.
H. Miller: But what are the implications of anyone being able to do this?
N. Rodgers: Well, and then, why bother to build your brand? If you're brand can be co-opted by someone else in a way that you find repulsive. It would be probably different if they hadn't made the poop joke. It probably would've been different if they had just made some other joke on the front of the bottle. I hear you on the dogs are full of poop and it's always funny because dogs are funny anyway. But I get it. But I don't know. I'm a little gray on the whole thing of yeah, but that's a distinct thing that they've built.
H. Miller: But I think too, I'm thinking about in terms of copyright. In US copyright, we don't have for example, what's called moral rights, which somewhere like in France, for example, under their copyright law, they have this concept of moral rights. Whereas the author or the creator of the work you do actually have a right to object to uses that you disagree with because in this exact case, you feel like they are tarnishing your reputation or you just find it objectionable. But we don't have that here. I don't know where this falls along that; like this is why they're not going with the argument necessarily. They're dancing around the argument, that this is just gross and we feel like it reflects badly on us and we just don't like it. They're having to make these cases about the reasonable person. Would they find this confusing? Is their impact on our commercial value, artistic expression, etc?
N. Rodgers: I think that's a weak argument for them. The idea that a reasonable person would confuse these. There's a part of me that thinks, it's too bad, we don't have that moral question in our law the way the French do. But then I think, my great googly movies, how much would be tied up in the courts at that point, because people in the United States are offended by pretty much everything all the time. That would be difficult because we'd have that question. But I do, there's a part of me that understands why France has that. I'm going to go off on a small tangent here very short, which is that porn films regularly use the quote plots or whatever of other works of known literary or movie works. There is a porn of Top Gun. There is a porn of Phantom of the Opera. There are all these different porns. In some ways I wish we did in the United States had the ability for someone to say that is offensive to what I wrote or my copyright of a thing.
H. Miller: Do you think then that the French porn industry must be a lot more like high, they're really coming up with a lot more original story-lines because anyone could object under moral rights to say, you can't do this.
N. Rodgers: I would imagine that exactly is what's happening in the porn industry in France. Is either that or they have a smaller porn industry because they don't have the same reaction to naked people having sex on film the way the United States does. We just don't have, that is not regularly done in film, you don't see. Whereas the French are like, yeah, we walked around naked for four scenes and it was just how it was, like they just conduct film that way in some instances. Probably it does make their porn industry better. You probably have to be higher-quality storyteller in order to be in. Because it goes back to that point of if you were Hugo's descendants and you didn't want Phantom of the Opera used in that way. In France you could stop it. In the United States, you can't. But there's another part of me that's like, but we are so litigious, that would be such a huge mistake in the United States to let anybody who had prickly feelings, you hurt my fee fees and so I'm going to sue you for making a parody of something that everything would be locked up completely in one of the other film.
J. Aughenbaugh: But Nia, one of the great ironies is, the controlling Supreme Court precedent regarding whether the government can regulate that speech is that the government has to show that the speech in question, say, for instance, a pornographic movie or book, lacks serious artistic, literary, political, or scientific value.
N. Rodgers: I remember that test.
J. Aughenbaugh: In some ways, the Supreme Court actively encourages the makers of porn in the United States to bring into their plots.
N. Rodgers: Literary quality.
J. Aughenbaugh: For instance as I tell my students-
N. Rodgers: As we were reading Shakespeare, again, bad broke out.
J. Aughenbaugh: Well. But actually those are cases that had rose after the Supreme Court came up with, and it's known as the Miller Test. You had cases in the lower courts where makers of porn movies, went ahead and said, but the government can't regulate us or prohibit us or target us. Because the basic plot has a bunch of students studying for a chemistry exam and they're studying the periodic table. Then they started having sex.
N. Rodgers: Like you do.
J. Aughenbaugh: We had a bunch of actors rehearsing Shakespeare.
N. Rodgers: Right.
J. Aughenbaugh: Guess what and Aughie broke out. In some ways our tests for whether or not the government can regulate that speech has to encourages or incentivizes the makers of said speech to bring in the stuff that in other nations or other cultures the errors would go ahead and say, but you're using.
N. Rodgers: Aughie, are you suggesting that the law is confusing and unclear?
J. Aughenbaugh: Oh, my goodness, no.
N. Rodgers: Perish the thought. Alito was on the side of Jack Daniels, anybody else?
J. Aughenbaugh: Oh, Hillary, correct me if my observation is different than yours, but I thought Neil Gorsuch. Wait a minute, you said Alito was on the side of whom?
N. Rodgers: No, Alito is on the side of the people who made the parody.
J. Aughenbaugh: Yes. I think pretty clearly Neil Gorsuch because Gorsuch, he said, "Could we not decide this case and send it back to the district court?" Then the attorney for the dog toy was just like well, the district court might not give all that much weight to the parody because the district court I think two different times has already expressed their dislike of the parody. Gorsuch went ahead and said, well, most lawyers don't stand at the lectern and impose a win. Because the longer this plays out, guess who gets to continue to sell the chew toy?
N. Rodgers: I'm just going to ask you all about that and if it's okay if we wrap up on that point. While this is going on, there is no injunction against them selling these toys.
J. Aughenbaugh: No.
N. Rodgers: They are continuing to make money. Let's just pretend for the sake of argument that Kagan at all takes the day and Jack Daniels wins this case and these people have to stop making this chew toy. I'm assuming that they will instantly stop making the other toys because if not, those companies will immediately take them to court to make them stop. As Hillary said the beer companies and their whatever, they are the least they could, they could take them to court to make them stop. But what happens to the money that they have made in the meantime? That won't be granted to Jack Daniels? They still get to keep what they've made, is that correct?
J. Aughenbaugh: There would be a separate lawsuit if Jack Daniels wants. Jack Daniels could file a separate lawsuit asking for the profits of this chew toy to be turned over to Jack Daniels.
N. Rodgers: But every day that Jack Daniels brings these toys to light, they sell more.
J. Aughenbaugh: Yes.
N. Rodgers: It's in Jack Daniels best interest if they win here at the Supreme Court to totally just walk away. Walk away, make it stop, but let it be done.
J. Aughenbaugh: This is where accountants and bin counters jump in and do an analysis as to what will be the increased costs and what will be our benefits. Because if you're VIP, one of the things that you would have to calculate if they lose is what's the likelihood the other companies that we have been in parody will sue us.
N. Rodgers: Hillary, I have a question for you, I know this is weird. I know the whole discussion is weird. You know how in some musical cases when an artist has been found to have accidentally used or intentionally used someone else's beat or right riff or whatever it is that they've been found to do and the original artist gets a cut of then going forward the royalties on the other artist. Like they don't say, and you have to put that genie back in the bottle and nobody can ever play that song again because that would be ridiculous. There's no way you could do this, so instead, they usually say we want to cut of whatever you get from that record. Could they do that in this sense? Could Jack Daniels say we want a cut of the money?
H. Miller: If they were willing to make a deal with them, I don t think there's the same compulsory licensing system. There's a whole really robust licensing system setup for music licensing just because of how complex it is. They would just have to create a one-off legal agreement. It would undermine them. At this point, they would have won, so who cares. Even I think going after the profits that the company made would be undermining themselves a little bit about this idea that it was just for our reputation. This isn't about the money, it's just because we love our customers and we don't want them to have CCDs grows.
N. Rodgers: We don't want them to be confused and think that we make things that make you poop on the floor. Again, I come back to the question of I'm with Alito on the what reasonable human.
H. Miller: Look, if you are drinking too much whiskey, who knows what's going to happen? Sorry. That particular phrase goes, all I could think was like, maybe it's just because I'm from Alabama and Jack Daniels is a cultural drink of choice of every type of person. It's not just for the fine whiskey drinkers, it's for anybody.
J. Aughenbaugh: Actually, I was going to say, you can't tell Hillary, is a dog owner.
N. Rodgers: You don't know what's going to happen to you after you drink a bottle of Jack Daniels, you might just poop on the floor. I love Hillary's.
J. Aughenbaugh: The punch line she has offered in this podcast.
N. Rodgers: That's the best.
J. Aughenbaugh: When she goes ahead and discloses that she's from Alabama, I'm like you have this Daniels Spaniels almost for the bad pun, but nevertheless.
N. Rodgers: When will we find out ever?
J. Aughenbaugh: Excuse me.
N. Rodgers: Ever. Will we find out ever?
J. Aughenbaugh: Yeah.
N. Rodgers: Hillary, we just did an episode not too long ago on them being slow and then they promptly released three. I'm pretty sure somebody in SCOTUS listens to the podcast because the next week they released three opinions. After we had said that they haven't been releasing any opinions and they went, oh yeah, boom, boom, boom. Maybe if we say to them today, they'll never release this and they'll release it sooner. We're just saying reverse psychology on the SCOTUS.
J. Aughenbaugh: Well, the worst-case scenario is we won't get this until June. But what this particular case, I think more than likely we will probably see something in early May.
N. Rodgers: I'm intrigued that no one put a stop to the making of the toys in the meantime like there's no injunction to do.
H. Miller: Did Jack Daniels try to get an injunction? Was that part of their original?
J. Aughenbaugh: No, they never asked. I think in part because they probably thought that they were going to win and when they did win in the first trial, why go ahead and ask for an injunction? But then the Ninth Circuit Court of Appeals steps in and really gummed up the works.
N. Rodgers: Just to end on a positive note, you have to admire the little guy who's going after Jack Daniels, who's trying to fight. Because a lot of times when big corporations knock on your door. When you open the door and there's a giant big corporation standing there with 18,000 lawyers you're like, okay, whatever you want to leave me alone I will do because I don't want to fight this. Good for VIP, but they're like, no, we will take you all the way to the Supremes. We're going to try to figure out this question, not just for this line, but for all the things we do and for the other people in the market who are doing similar things. Because I'm sure that there's a bunch of people on the parody side of the market that are looking at this, waiting to see what the Supremes are going to do. This is not just this case, this is a lot of other parody products that are waiting to see how it comes out.
J. Aughenbaugh: It's not only the parody products, but giving guidance to the lower federal appeals courts. It also will send a message to Congress, if this is not the outcome that you like.
N. Rodgers: You know how to fix it.
J. Aughenbaugh: You need to change the landmark. Particularly if the court does not issue a decision based on the constitution, which I can't understand why they would use the constitution if they're going to rule in favor of Jack Daniels. You would use the First Amendment to go ahead and protect VIP products and their right to parody well-known product lines.
N. Rodgers: Thank you both very much for this episode, it has been fascinating and funny.
J. Aughenbaugh: Yes.
N. Rodgers: A little gross and I appreciate all those things. Thank you.
J. Aughenbaugh: Thank you. Thank you, Hillary, for schooling us once again on copyright and trademark, we are greatly [LAUGHTER].
H. Miller: Always a good time here.
N. Rodgers: Thank you.
J. Aughenbaugh: Thank you.
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