Contemplate the Honey Badger. Way back, within the historical days of yore, circa 2011 or thereabouts, a visionary by the identify of Christopher Gordon noticed a badger-sized gap within the emergent world of on-line video. To fill this hole, Gordon created a collection of YouTube movies following the exploits of the baddest badger within the land. His first video, titled “The Loopy Nastyass Honey Badger (unique narration by Randall)” was uploaded to YouTube and, as these items occur, quickly grew to become a viral sensation the world over.

His video depicted the titular badger doing regular badger stuff, like consuming a snake, whereas a sassy voice-over described the motion to hilarious impact. Tens of thousands and thousands of individuals seen the video, which spawned follow-ups and two noteworthy catchphrases. The primary, “Honey Badger Don’t Care,” and the second, the marginally extra salty “Honey Badger Don’t Give a S—,” grew to become well-known in sure corners of the web, and finally leached into the minds of the overall populace. In addition they grew to become useful logos. There was little doubt that Gordon’s movies have been a few of the greatest badger-related content material wherever, and, the place there’s high quality content material, there are unscrupulous enterprise people trying to exploit the creativity and buzz generated by the creator.

Right here, Drape Artistic, Inc. and Papyrus-Recycled Greetings, Inc. have been those trying to sweep a few of these candy badger bucks into their coffers, and weren’t above snookering poor Gordon in doing so. They marketed a collection of greeting playing cards based mostly round Honey Badger’s catchphrases and added little in the best way of latest artistic materials. Apparently, they added a hat right here and a pumpkin there, however, viewing the playing cards objectively, it’s exhausting to argue that any client bought one of many disputed playing cards for any purpose aside from the draw of ol’ Honey Bae.

To make issues worse, Gordon’s folks (sure, badger-based celeb is sufficient to garner folks) had been in contact with Papyrus-Recycled’s guardian firm earlier than the infringement to debate a attainable licensing deal. However, as an alternative of reaching an settlement to compensate the creator, Papyrus took the much less honorable path of merely exploiting the content material with out advising Gordon, most probably with the assumption that Gordon wouldn’t discover the exploitation or have the funds or wherewithal to deliver a lawsuit.

However, Gordon introduced swimsuit and the info appeared to mirror a simple case by which the creator needs to be compensated. However, no cube, no less than initially. The defendants prevailed on the abstract judgment stage beneath the Rogers take a look at, derived from the Second Circuit’s choice in Rogers v. Grimaldi, 875 F.2nd 994 (2nd Cir. 1989), which seeks to “strike an applicable steadiness between First Modification pursuits in defending inventive expression and the Lanham Act’s functions to safe logos rights.” The District Courtroom discovered that defendants’ use of Gordon’s trademarked content material was protected free speech beneath Rogers and tossed the case.

This outcome wasn’t altogether shocking given the Ninth Circuit’s previous utility of the Rogers take a look at. In 5 circumstances out of 5, its choices had tilted in favor of the First Modification and the junior person of the content material at concern. On attraction right here, the Ninth Circuit walks us via numerous these circumstances — a document label named Empire that challenged use of its mark because the title of the TV collection; Mattel’s objection to an artist placing Barbie in a blender in a collection of images; a soccer participant’s try to hunt compensation for using his likeness in a online game — after which alerts that Gordon’s case is totally different by emphasizing the disjunctive nature of the Rogers take a look at, which requires proof that using the disputed mark is “both not artistically related to the underlying work” or was utilized in a method that “explicitly misleads customers as to the supply or content material of the work.”

The Ninth Circuit reversed, discovering that Gordon might show to a jury that what occurred was what occurred: the greeting card corporations had “merely appropriated the goodwill inhering in Gordon’s mark with out including any creativity of their very own.” This conclusion does elevate a corollary concern, viz., that there’s some quantity of creativity that might enable the businesses to applicable Gordon’s goodwill in his content material. A balancing take a look at of this type may match with challenge titles, like within the Empire case, but it surely doesn’t work when you may have a defendant that’s promoting merchandise on the again of another person’s creativity. In such circumstances, when you fancy another person’s content material and need to incorporate it right into a line of product, you ought to be required to achieve an settlement with the creator. And asking a jury to determine whether or not “defendants’ added their very own inventive expression past that represented by the mark” is a tall order.

Because the Circuit notes, it might be the case that “defendants’ playing cards are solely intelligible to readers acquainted with Gordon’s video and intentionally commerce on the goodwill related together with his model.” Nevertheless it stays unclear as as to whether this deliberate buying and selling on the goodwill of one other may very well be excused given sufficient added creativity.

And the Circuit declines to deal with the second Rogers prong: whether or not the playing cards are deceptive as to the supply or content material. This additionally would appear clear, notably as to the “content material,” as Gordon created an idiosyncratic character and set of catchphrases that tens of thousands and thousands of individuals seen and which have been thereafter included right into a collection of greeting playing cards. It appears implausible that anybody would assume the “content material” of the playing cards originated from anybody aside from Gordon.

Whereas the Ninth Circuit’s opinion would appear to tee this case up fairly correctly for a jury to search out that neither of the Rogers prongs insulates the defendants right here, there stays some ambiguity.

The Circuit notes that the jury should be instructed that defendants’ use “is explicitly deceptive provided that it explicitly misleads customers into believing that Gordon sponsored or is in some way related to defendants’ playing cards. Merely utilizing the mark just isn’t sufficient.There should be one thing else concerning the playing cards that explicitly misleads customers into believing that Gordon sponsored or is related to the playing cards.” It’s unclear what might presumably be proffered to the jury so as to add this “one thing else” given the uncontroverted proof of Gordon’s creation and popularization of his content material and defendants’ clear exploitation of that content material within the playing cards.

And the litigants must grapple with the considerably round definition of inventive relevance, because the Circuit discover that “[t]he use of a mark is artistically related if the defendant makes use of it for inventive causes.” Greeting playing cards can definitely be inventive, however a greeting card firm shouldn’t be ready so as to add a point of ancillary “inventive” materials to another person’s artistic content material and thus keep away from infringement legal responsibility.

These two points could complicate the case because the events gear up for trial, however, in toto, the opinion, which lastly units the outer limits of the Rogers take a look at, is a optimistic improvement on this nonetheless turbid space of legislation. Maybe the Honey Badger itself NOW will reappear, like his sworn enemy, the groundhog, to supply some perception into how for much longer we’ll wait till the following Circuit choice arrives to supply additional readability.


Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an artwork legislation agency based mostly in Venice, California. He represents artists and content material creators of all stripes and writes and speaks recurrently on copyright points. He might be reached at [email protected], and you’ll observe his legislation agency on Instagram: @veniceartlaw.

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