Yesterday, the U.S. Supreme Court released its opinion, Matal v. Tam, previously known as Lee v. Tam, regarding viewpoint discrimination and the First Amendment. The name changed when Michelle Kwok Lee, the U.S. Patent & Trademark Office (“PTO”) director at the time of the original lawsuit and appeals, resigned and Secretary of Commerce Wilbur Ross appointed Joseph Matal as interim PTO director on June 7, 2017.
The heart of the case was whether the PTO could deny registration to those trademarks which it deems “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” (emphasis added) under § 2 of the Lanham Act of 1946, 15 U.S.C. § 1052(a).,  The trademark in question was the name of a dance-rock band, “The Slants,” of which Mr. Simon Tam and his fellow band members, all Asian-Americans, belonged. In other words, did the Lanham Act authorize the PTO to make an offense-free “safe space” out of trademark applications? [Read More]
Congress is considering reforms to our copyright laws, including some that involve compensation for copyrighted music.
As lawmakers contemplate reforms, it should recall the little known copyright alliance that shaped the Constitution’s Intellectual Property Clause. The alliance between Noah Webster—“The Father of Copyright”—and James Madison—“The Father of the Constitution”—sheds light on the constitutional foundations of copyright. These foundations should never be forgotten, even as Congress confronts novel issues arising from the digital revolution. This is especially so because the American economy loses about $300 billion every year to online theft of intellectual property, including far too much piracy of music.
As we discuss in our new book, The Constitutional Foundations of Intellectual Property—A Natural Rights Perspective, both Webster and Madison held that authors possessed exclusive rights over publishing and sales of original works. They regarded copyright as “literary property,” grounded in a person’s natural right to the fruits of his or her own labor. As Madison wrote in a 1792 essay, “government is instituted to protect property of every sort.” By this reasoning, Webster and Madison succeeded in securing a national system for protecting copyrights. [Read More]