NFL Tells ICE That Parody Shirts Are Counterfeits
from the beck-and-call dept
For years now, we’ve pointed out that ICE — Immigration and Customs Enforcement — has this weird habit of acting as the private police force of various big sporting leagues, almost always timed to big sporting events. Every year, right before the Super Bowl, for example, ICE seizes a bunch of websites. And ICE also goes way overboard in seizing physical merchandise, even if that’s at least slightly closer to its mission. But it’s been painfully obvious that ICE more or less sees itself as an arm of these sports leagues, rather than employees of the US government, and thus, the public. Last year, I filed some FOIA requests about ICE seizures leading up to the Super Bowl, but had them rejected on the basis that it was an ongoing investigation.
However, law professor Rebecca Tushnet is much more persistent than I am, and has been pursuing documents related to ICE seizures in the courts, and has had the court force ICE to hand over details — including the not-at-all surprising, but still horrifying discovery that the NFL gives ICE guidance on what to seize, and it includes obvious parodies which are clearly not infringing, as they’re protected by fair use. This is from the manual that the NFL provided ICE:
And, sure, perhaps it’s true that NFL licensed merchandise won’t favor one club over or another or make derogatory use of another’s marks… but it’s easy to argue that this is parody and thus not infringing. Just because it’s not licensed, doesn’t automatically make it infringing. But the NFL doesn’t care. And I guess that’s not surprising that the NFL doesn’t care — but it’s astounding that ICE just agrees to follow the NFL’s marching orders. Because unlike the NFL, ICE should actually follow what the law says, and not what a very wealthy sports league wants to happen.
As Tushnet points out in response to this:
So, what do we know? (1) Despite ICE’s initial claims to me via its spokesperson and a lawyer, ICE relies only on industry guides to identify counterfeits, not on any independent sources. (2) Those industry guides identify what they don’t like, not what is within the scope of counterfeit goods. (3) Most of what ICE seizes is truly counterfeit, but when it seizes parody merchandise, it implicates First Amendment interests in free speech.
Considering that this is ICE, who has a history of seizing blogs based on big industry claims, it seems quite clear that ICE couldn’t care much less about the First Amendment interests of the public. Just the profits of big industry.