Permission Culture Kills Off A Bunch Of Fun MLB 'Nickname Jerseys'

from the aborting-fun dept

With the direction of intellectual property rights in America generally being driven down a one-way street towards expansionism, the associated culture of permission has ridden sidecar. Unlike intellectual property rights, however, permission culture is bound not by statute and legal interpretation, but rather by the wider understanding of public opinion on those matters, which tend towards being flawed and uninformed. Still, permission culture counts even large corporate interests with lofty legal budgets among its victims.

See, for instance, the recent revelation that Major League Baseball's upcoming "Players Weekend" jerseys, which will feature hip player nicknames on the backs of jerseys, will not feature all the nicknames players requested as MLB attempts to navigate the tumultuous trademark waters.

Major League Baseball is playing it safe with player nicknames that will adorn novelty uniforms during what it calls Players Weekend at the end of August. But there won't be any nicknames that could possibly bring MLB trademark infringement troubles.

However, Philly.com reported that at least two Philadelphia Phillies players were denied their preferred nicknames because of intellectual property concerns. Zach Eflin and Hoby Milner wanted to wear the nicknames "Led Zeflin" and "Hoby Wan Kenobi" on their backs, but MLB nixed them. Promo Marketing Magazine reported that MLB rejected "Kojak" as a nickname for Adrian Beltre of the Texas Rangers. He'll have to settle for "El Koja" instead.

Now, the article makes the point that this isn't strictly about players having these names on their jerseys during games. It's also about MLB being able to sell and market those jerseys and concerns that actually selling jerseys with those names would open up serious trademark actions. But whether or not that concern is actually valid is an open question. Entities like Led Zeppelin and LucasFilms/Disney are not remotely in the baseball business, even if they are in the apparel business. These names, however, are pretty clearly a form of parody, even if its the lame pun type of parody. There's also zero in the way of potential customer confusion. This isn't to say that there would be absolutely no merit to a trademark claim brought by those groups, but it should be obvious that how meritorious those claims are would require a fight in court to decide.

But those viewing this through the lens of the culture of permission will see the infringements here as obvious. After all, they are references to other works and that kind of fun cannot be had unless licenses are paid. It's as though all of culture is constrained by some sort of first-to-file, or first-to-create standard, with fun gimmicks like Players Weekend in baseball living only at the pleasure of pure originality. Harm to others is not the concern; it's all about squeezing every possible revenue stream out there.

Eric Ball, an intellectual property lawyer with Fenwick & West LLP, Mountain View, Calif., said that “Hoby Wan Kenobi” probably wouldn’t harm the Walt Disney Co.’s Star Wars trademark if it appeared on the player’s shirt.

“But it’s a source of licensing revenue that those companies could have used,” Ball said. “Also, it’s not necessarily three days, because how long will these jerseys stay in the MLB shops?”

As we said, that's true, but the purpose of trademark is not and never was to keep anyone anywhere from ever making any money off of content that is not purely original and without nod or reference. But here we are. Thanks to permission culture.


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  • identicon
    Anonymous Coward, 21 Aug 2017 @ 9:40am

    Zach Eflin and Hoby Milner wanted to wear the nicknames "Led Zeflin" and "Hoby Wan Kenobi" on their backs, but MLB nixed them.

    If MLB made a jersey that said Hoby Wan Kenobi on it, I don't see what incentive Disney would have for releasing a new Star Wars movie ever year for the next few foreseeable decades.

    reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 21 Aug 2017 @ 9:56am

    Petard Hoisting

    They may be worried about being hoisted by their own petard. For example, if someone in the vodka making business makes a new drink named "Cardinal Sin" and has a cardinal (the bird) on it, then if MLB tried to sue their own actions could be used against them. So if MLB is selling something with the name "Kojak" on it, then the makers of "Cardinal Sin" could rightfully use that as an example of how they are doing exactly the same thing that MLB is doing. It would be bad precedent to have your own actions used against you when you are trying to be the trademark bully.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Aug 2017 @ 10:50am

      Re: Petard Hoisting

      Sure you could. And then get sued because the MLB has a LOT more money then you do. Even if your right, the legal costs, will ruin you.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Aug 2017 @ 3:28pm

    "That damn "permission culture" is totally giving me blue balls"

    reply to this | link to this | view in chronology ]


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