Lex Lumina Files Amicus Brief on Behalf of Authors Alliance and Artists in “Wavy Baby” Appeal

On June 24, 2022, Lex Lumina attorneys filed an amicus brief in the U.S. Court of Appeals for the Second Circuit on behalf of the Authors Alliance and artists Mason Rothschild and Alfred Steiner in Vans, Inc. v. MSCHF Product Studio, Inc. Our brief, which is in support of neither party in the case, explains:

“Brands have long been important subjects of artistic reflection and commentary. Trademark law does not give brand owners the right to control depictions of, or comments on, their brands. Nor can it. The First Amendment guarantees artists’ right to depict the world as they see it and to respond in the marketplace of ideas to the inescapable corporate brand messages by which we are bombarded every day, virtually everywhere we look. That First Amendment guarantee is practically nullified, however, if courts do not have a clear framework for disposing of unconstitutionally oppressive trademark suits early as a matter of law.”

Such a framework was set out in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Our brief urges the Court (1) to clarify that First Amendment doctrine distinguishes between commercial and noncommercial speech, not commercial and noncommercial products, and (2) to clarify that application of Rogers does not require consideration of the likelihood of confusion factors set out in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961).

The brief was authored by Lex Lumina lawyers Mark McKenna, Rhett Millsaps, Chris Sprigman, and Rebecca Tushet. Read the full brief here.