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Baseball fans, podcasts, and the First Amendment

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This article first appeared in Full Court Press, a blog on sports and the First Amendment by Levine Sullivan Koch…

This article first appeared in Full Court Press, a blog on sports and the First Amendment by Levine Sullivan Koch & Schulz, LLP. Used with permission.

By Nathan E. Siegel

Last week the blogosphere and Twitter erupted following reports that several podcasts created by fans of Major League Baseball teams had disappeared from iTunes. According to NBC Sports,MLB issued a statement that said the League had notified Apple about podcasts “whose titles and/or thumbnails include infringing uses of trademarks of Major League Baseball and certain Clubs.” The fan-led podcasts had titles such as “Rangers Podcast,” “Pirates Prospects,” “Mets Musings,” and even “Bleacher Nation” (about the Cubs).

MLB said it had asked Apple to remove any infringing “trademarks” from the titles or thumbnails, which presumably refers to team names or logos. The League said it did not ask for the podcasts themselves to be taken down, and implied that Apple did that on its own.

Whatever the specifics may have been, most of the commentary criticized MLB for targeting podcasts put together by its fans. But surprisingly little attention was paid to whether, as a legal matter, the titles or thumbnails really did infringe the League’s trademarks. The answer for the most part is likely no, because most of those titles would be protected by the First Amendment.

The podcasts themselves are filled with speech and other commentary about Major League clubs. Over the past 25 years, several cases have addressed whether the use of a trademark in a title is protected by the First Amendment.

The key precedent was a lawsuit filed by Ginger Rogers over the title of a Federico Fellini movie called “Ginger and Fred,” which was released in 1986. The film was a spoof about a fictional Italian cabaret dancing team who were nicknamed in the film by their fictional fans as “Ginger and Fred.” Rogers complained that the title violated her trademark rights in her name, because people would be confused into thinking that she (and Fred Astaire) were behind the film.

But the federal appeals court in New York ruled that even if people might be confused, the title was protected by the First Amendment. The court held that a title of an expressive work is protected unless it (1) “has no artistic relevance to the underlying work whatsoever,” or (2) “explicitly misleads as to the source or the content of the work.” Because the title “Ginger and Fred” related to the characters in the movie, and it did not explicitly say that Rogers had anything to do with the film, it was constitutionally protected.

Known as the “Rogers test,” several other leading federal appellate courts have followed it to reject trademark claims based on titles. For example, the Danish Band Aqua successfully fended off a lawsuit from Mattel over the title of their 1997 song “Barbie Girl,” which satirized the Barbie phenomenon. On the other hand, the popular duo OutKast lost a controversial decision when they used the title “Rosa Parks” for a song about the group’s return to prominence, not the civil rights movement.

Here, all of the podcast titles would easily pass the first part of the Rogers test because a team’s name is obviously relevant to a podcast about that team. And most of podcasts would likely be protected under the second prong as well. Humorous titles like “It’s About the Yankees, Stupid” do not explicitly suggest official team sponsorship; if anything, it seems doubtful that a title like that would come from the Yankees.

On the other hand, titles such as “Rangers Podcast in Arlington” or “Cubscast” might be moving a little closer to the line, because both sound more like a name that team-sponsored media would use. But even the creators of those podcasts could argue that their titles do not explicitly claim official sponsorship. As for team logos, the same analysis would likely apply, though each thumbnail would need to be evaluated case-by-case.

To be clear, there is nothing wrong with sports leagues and clubs vigilantly policing their trademarks. The sports industry probably has more to lose from knock-off merchandise and other genuine trademark violations than just about any other. But when it comes to pure speech, the First Amendment takes a dim view of the notion that fans are free to speak about their team, but cannot refer to it in a title.

Nathan Siegel regularly represents clients in disputes over intellectual property rights and the First Amendment, including a group of media companies who filed a brief amicus curiae supporting Electronic Arts’ First Amendment defense to trademark claims brought by former NFL All-Star Jim Brown over Madden NFL video games.

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