Do Clean Zones Muddy Commercial Speech?

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By: Kelton McLeod

The city of Seattle, Washington has been chosen to host  the 2023 MLB All-Star Week and to act as one of the host cities for the 2026 FIFA World Cup. While these are fantastic sporting events that will bring many tourists and spectators to the Emerald City, the local government will need to consider the potential ramifications of the “clean zone” policies frequently required of host cities.

Clean zones are a requirement that certain areas within city limits be free of marketing signs, activations, or other promotional materials. FIFA, the Olympic Committee, and the MLB all implement clean zone requirements for major events with massive, sponsored advertising.  Clean zones ensure that no advertising (or branding) is visible within the venue or around the event unless associated with an official sponsor. Clean zones are set to protect any deals already in place, as sponsors will pay massive amounts in order to be “The Official” product of an event like the Olympics and therefore want to ensure that the “honor” they pay for is not shared. However, these clean zone policies raise concerns about potential infringement on the free speech and commercial rights of the businesses who are outside the scope of these deals.

The First Amendment states that the government “shall make no law . . . abridging the freedom of speech.” In Virginia State Board of Pharmacy, this protection was extended to “commercial speech,” such as advertising. But, the Supreme Court tempered this extension, by stating that commercial speech is still subject to government regulation and is not as expansive as other free speech protections. Since Central Hudson Gas and Electric Corp. v. Public Service Commission, courts have applied a four-part test in resolving First Amendment challenges to commercial speech regulations. This test asks whether (1) the speech being restricted concerns lawful activity and is not misleading, (2) the asserted governmental interest is substantial, (3) the regulation directly advances that governmental interest, and (4) the regulation is not more extensive than necessary to serve that interest. There are no first amendment concerns if the type of speech being restricted is unlawful or misleading, but legal and non-misleading speech must consider other factors of the test. 

In the case of clean zones surrounding major sporting events, the speech being restricted is lawful marketing or other promotional materials, meaning an analysis of the other factors is required. The governmental interest in these cases are substantial because clean zones are often a requirement to bring any event, and all its related revenues, to a host city. Further, clean zones may be implemented to protect public safety, prevent ambush marketing, and promote the integrity of the event. These are arguably substantial governmental interests that are advanced by clean zone regulation and therefore may justify the restriction of commercial speech within certain areas. However, the city still cannot be overly broad in its restrictions. 

Seattle will need to consider the rights of businesses to engage in commercial speech. If local businesses in the designated clean zones are not able to engage in any commercial speech during the event, they could suffer from significant financial losses. To protect these commercial rights, the city will need to ensure that the clean zone regulation put in place is not too extensive, either in scope or proximity, to any stadium in use. The right scope of such regulations is highly fact dependent on the terms of individual clean zones, but if the regulations remain no more extensive than necessary, the clean zones should remain constitutionally sound.

As Seattle welcome’s visitors during the All-Star Week and World Cup matches, it will need to ensure that any policies are not overly broad nor cover more of any area than is necessary to serve the intended purpose of protecting the interests of the event organizers.

Monster Energy vs. Everyone: Why is a drink company challenging video games for using the word “monster”?

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By: Perry Maybrown

Have you ever been playing Monster Hunter and thought, “Huh, this must be related to Monster Energy.” While I personally have never faced this conundrum, it’s a scenario that Monster Energy has been very worried about. So much so, that for the past few years they have been targeting a wide range of industries to protect their trademark of the word “monster.” Two notable attacks that have been revived by the media were against Pokémon for “Pocket Monster” and Capcom for their videogame franchise “Monster Hunter.” Both complaints were filed in Japan and promptly dismissed. 

This has not deterred the energy drink company in the slightest however, as they have recently sent a cease and desist letter to independent development studio Glowstick Entertainment for their game Dark Deception: Monsters & Mortals. In their letter, Monster Energy requests that Glowstick never again attempt to trademark something with the word “Monster,” or have any trademarks that could at all resemble their own. They go on to request that the logo of the game be modified and sent to them for approval. Monster asked Glowstick to refrain from using the colors green, white, and black (a task that is especially daunting considering the Glowstick logo is green on a black background). Furthermore, Monster required Glow Stick not emphasize the word “monster” more than any other in the title of their game.

Furious with these demands, founder and CEO of the studio, Vincent Livings, took to Twitter to air his complaints and share the cease and desist letter. This has led to extreme reactions from the Twitter sphere and news outlets which have shared the story. 

Are these reactions warranted? Or is Monster simply protecting its rightful trademark? 

A trademark can be composed of a variety of elements: words, images, sounds, even colors can be used as a way to denote a specific brand or product. What a trademark is not, is complete ownership of a single word, symbol or color in all situations. Rather, a trademark only protects the use of your mark in connection with similar goods or services. Boiling it down to the most basic level, infringement occurs when a consumer may become confused between two marks. This is referred to as the likelihood of confusion. 

The courts have determined a test and list of factors that they weigh when deciding infringement. On the west coast (9th Circuit) these are referred to as the Sleekcraft Factors. The factors are as follows:

(1) Strength or Weakness of the Plaintiff’s Mark. 

(2) Defendant’s Use of the Mark

(4) Actual Confusion.  

(5) Defendant’s Intent.  

(6) Marketing/Advertising Channels. 

(7) Consumer’s Degree of Care.  

(8) Product Line Expansion. 

(9) Other Factors.

On the east coast they are the polaroid factors, which are similar to Sleekcraft: 

(1) the strength of the plaintiff’s mark; 

(2) the degree of similarity between the two marks; 

(3) the proximity of the products; 

(4) the likelihood that the owner will bridge the gap; 

(5) evidence of actual confusion; (6) defendant’s good faith in adopting the mark; 

(7) the quality of defendant’s product; and 

(8) the sophistication of the consumers. will likely cause confusion with plaintiff’s mark.

While a court may review all of these factors to determine the likelihood of confusion, there are several that are most pivotal when reviewing the scant facts we know for Monster Energy. To start with, product line expansion refers to whether the goods and services are related and the likelihood of one company expanding into the others business. This again is to help figure out “likelihood of confusion” on the part of the consumers. For example, it’s easier to become confused between two purses both made by a company called Gucci, however consumers are less likely to relate the two if it’s a sink maker that goes by that name. 

In the case of Monster,it is critical to ask, how likely is a beverage manufacturer to enter the video game market? Not only are the two products completely unrelated, the video game industry is difficult to break into on a good day. 

Furthermore,  the strength of the mark is evaluated on a sliding scale, with the weakest being what is called a “generic mark.” Generic words do not receive trademark protection because everyone needs to use them to describe their business. For example, if I created a coffee company called Coffee Company that would be generic. Imagine if I could now prevent all other coffee companies from using the word “coffee.” That would be wild! 

Next up is determining how descriptive the trademark is. Basically, is your trademark just describing the thing you are selling? These types of trademarks usually do not receive protection, but can in certain instances. 

The strongest marks are fanciful, arbitrary or suggestive. A fanciful mark is the best one you can get from a legal standpoint, because it’s a word you just made up (think Pepsi, Kodak etc.). A suggestive mark is one that kind of sounds like the product (like Netflix). And finally is arbitrary, which is just a random word that is used on a product that may have meaning elsewhere but isn’t directly descriptive of the product itself (Apple Computers is a great example of this). The Monster Energy mark would likely either be considered arbitrary or suggestive. Maybe suggestive because its name implies that you get monstrous, or huge amounts of energy from it. Arbitrary perhaps because the monster seems unrelated to the beverage. 

Here is the issue for Monster; while it is arbitrary for their product in particular, the word is descriptive when it comes to the video games they are challenging. Take for example Monster Hunter, which is a game series where you… hunt monsters. Or Pocket Monsters, where you collect monsters, you can fit in your pocket. At worst the word may be considered generic as it is used so ubiquitously throughout the industry to describe games and their contents. 

This is important because courts are unwilling to impose trademark protections for generic marks, because of how damaging it could be to the market. While descriptive marks may receive some kind of protection it’s a challenge that requires a large amount of work from the company that wishes to secure the trademark. Thanks to this, courts would be even more unwilling to find in Monster’s favor and force video game companies to stop using such a descriptive term. 

Conclusion

Like the saying goes, “with great power comes great responsibility.” While trademark owners do have rights to that mark, their power comes with responsibility  as they must defend their mark or risk losing it. In that sense, it seems logical that Monster is so zealously fighting to keep the word “monster” out of other companies’ mouths. On the other hand, this overkill method to attack any use of such a common word isn’t a great look for the company. 

At the end of the day, the decision of whether infringement exists is for the courts to decide. And it’s Monster’s choice to spend the money getting to that point, win or lose. We don’t have all the facts for either of these cases, and only know one side of the story, so it’s difficult to say if there are more factors that could play into this issue. But for now, it seems to be David vs Goliath. And the public is on David’s side.

The Music Industry Is Out of Tune: Women in Music Are Underpaid and Underrepresented

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By: Kyle Kennedy

In 2018, the principal flutist from the Boston Symphony Orchestra, Elizabeth Rowe, filed a lawsuit against her employer alleging gender bias because the male principal oboist of the orchestra made $70,000 more per year. This disparity of pay is a common trend among professional orchestras where men earn an average salary of $255,000 while women earn $202,000. Men fill 80% of the top-paying orchestra roles, and of the one-hundred conductors of major orchestras across America, only four are women. The gender-based disparity of pay is prevalent across the entertainment industry, as the median annual earnings for women in art are $45,156 while the median for men in art was $60,497. In 2018, the sister rock trio, Haim, recounted firing their agent because the male artist sharing their stage at a festival was paid ten times more.  Women are chronically underpaid and underrepresented in the music industry because its unique characteristics naturally foster gender-based discrimination while simultaneously making it extraordinarily difficult for plaintiffs to prove employment discrimination or harassment claims.

Women are chronically underrepresented in the music industry.

Women are chronically underrepresented in music compared to men. In 2019, USC Annenberg conducted a study analyzing the top 100 songs from 2012 to 2019. The data showed that only 17.1% of the Top 100 songs in 2018 featured women artists, compared to 22.7% in 2012 and 28.1% in 2016. In the range of years studied, the ratio of male to female artists was 3.6 to 1. Women were also more likely to work as individual artists with 31.5% of individual artists being women compared to only 4.6% of duos and 7.5% of bands featuring women. Women were especially underrepresented in creative roles making up only 21.7% of artists, 12.3% of songwriters, and 2.1% of producers. The ratio of male to female producers in the years analyzed was 47 to 1.  

Perhaps the best example of the underrepresentation of women in music is the gender gap in Grammy nominations. Winning a Grammy is the pinnacle of achievement in the music industry, and between 2013-2019 only 10.4% of the nominated artists were women. Grammy awards and nominations often carry substantial financial consequences, as these types of accomplishments lead to higher pay and more opportunities.

In addition to being underrepresented and underrecognized, women in the music industry face barriers to advancement because of their gender. 39% of the Annenberg respondents reported being stereotyped and sexualized by their male co-workers. Of 75 respondents who worked in the studio, 39% reported being objectified, 25% were the only women in the room, and 28% were dismissed. A 2020 study released by Annenberg surveyed 401 women creatives and found that “64% [named] sexual harassment and objectification “as a major challenge women face in the industry.” The inaugural ‘Women in the Mix’ study surveyed 1,600 women or gender-expansive people working in the music industry to identify trends in their shared experiences. The study demonstrated the prevalence of discrimination in the industry, as 77% of respondents said they were treated differently because of their gender and 56% believed their employment in music was affected by their gender. Women also tend to be overworked and underpaid, as 57% of the respondents hold two more jobs while 28% work over 40 hours a week. Despite this investment of time, 36% of respondents make less than $40,000 per year and 57% felt they should be further along in their career compared to non-performance artists working in music. Gender expansive artists face heightened discrimination and were twice as likely than artists who identified as women to make less than $40,000 per year.

The data and statistics clearly show that women have a harder time breaking into the music industry, are paid less than men, and are provided less opportunities for recognition or advancement.

The music industry is uniquely situated to foster gender discrimination.

         Women in the music industry face more severe gender-based discrimination because of the prevalence of relationship-based hiring, gender stereotypes, and the practice of underpaying inexperienced artists.

         The music industry has traditionally relied on informal hiring procedures based largely on personal relationships. It can be quite difficult for outsiders to get their foot in the door, and one female jazz musician reported that people would often hire their male friends over equally or more skilled women.  The Annenberg data showed that men are disproportionately placed in positions of power in the industry, and they hire men at a disproportionate rate. This ‘boys club’ mentality fosters the chronic underrepresentation of women in music.

         Women in the music industry also must battle against common stereotypes that are often used as poorly disguised gender discrimination. Women in music report being given work that is rooted in gender roles, such as “the cliché of women possessing good communication and “people’s skills”, and men traditionally being seen as the decision-makers and the assertive ones.” These stereotypes lead to the devaluation of women in the workplace because employers value “alleged natural skills” differently which impacts hiring decisions. These adverse decisions lead to wage gaps and “prestige gaps” as men are more often thrust into roles of importance. Additionally, women are often forced to work in uncomfortable or hostile work environments as 39% of the 2019 Annenberg respondents were sexualized, objectified, or stereotyped at work. Women already face tremendous barriers entering the music industry, which are only worsened by the prospect of facing harassment or mistreatment in the workplace every day.

         The music industry is known for underpaying inexperienced artists who still must “earn their stripes”, and the commonality of this practice allows employers to get away with blatant discrimination. Many artists report having to work for little or no pay upon entering the industry, and many said that once you are paid “nobody talks about how much.”  Women entering the industry often work for free or are underpaid for extended periods, and the normalization of this practice makes it even more difficult for women to break into the music industry.

It is difficult for artists to prove their employer discriminated against them.

   The difficulties in comparing various artists and the social norms of the music industry make it difficult for women to recover from employers who discriminate against them. Those who face gender-based compensation discrimination can sue under the Equal Pay Act or any applicable state law. Under the EPA, men and women in the workplace must be given equal pay for equal work. The jobs must be substantially equal, which is determined by the job content. However, it can be difficult for artists to demonstrate that two jobs are substantially the same in court, where they have the burden of proof as plaintiffs. Artists offer various skills and make various contributions to musical projects which can be hard to compare or objectively value.

Artists could also sue under Title VIII, the Age Discrimination Employment Act, and the Americans with Disabilities Act which prohibit compensation discrimination without requiring the jobs be substantially similar. There are certainly legal avenues to pursue claims, but the realities of the music industry make pursuing employment discrimination claims less appealing. The relationship-based, quid-pro-quo nature of the music industry discourages women who have been discriminated against from pursuing claims because of fear of retaliation from the industry. The common practice of underpaying newer employees makes it difficult to find explicit evidence of discrimination. In discrimination cases, courts will often look for the “smoking gun” showing intentional discrimination, which is a lot more difficult when employers can point to the tradition of grossly undercompensating new employees. Finally, the music industry is extremely competitive and young artists of all genders are incentivized to compete against each other by accepting lower pay or worse treatment from their employer. Women are already systematically mistreated in the music industry, and its ultra-competitive nature leads to normalizations of discrimination.  

The music industry must take better care of women in music.

Women are underpaid and under-represented in the music industry. The unique characteristics of the industry make gender discrimination more prevalent and more difficult to enjoin. Courts would have an easier time sorting through gender-based compensation discrimination for musicians or other artists by coming up with some standardized system of value analysis for musical contributions. While some underpaid women artists might still be undervalued by such a system, some relief is better than no relief. Additionally, the threat of relief might lead to much needed advancements in the industry itself. The music industry could experiment with more standardized compensation for artists and performers, higher wages for inexperienced workers, and some equitable system that opens opportunities outside of personal relationships. The music industry today is sadly out of tune and continues to discriminate against women through unequal pay and career advancements. The music industry should strive to shift its common practices to encourage equality, fairly compensate new artists, and deter workplace harassment and discrimination.

(A.I.) Drake, The Weeknd, and the Future of Music

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By: Melissa Torres

A new song titled “Heart on My Sleeve” went viral this month before being taken down by streaming services. The song racked up 600,000 Spotify streams, 275,000 YouTube views, and 15 million TikTok views in the two weeks it was available. 

Created by an anonymous TikTok user, @ghostwriter977, the song uses generative AI to mimic the voices of Drake and The Weeknd. The song also featured a signature tagline from music producer Metro Boomin. 

Generative AI is a technology that is gaining popularity because of its ability to generate realistic images, audio and text. However, concerns have been raised about its potential negative implications, particularly in the music industry, because of its impact on artists. 

Universal Music Group (UMG) caught wind of the song and had the original version removed from platforms due to copyright infringement. 

UMG, the label representing these artists, claims that the Metro Boomin producer tag at the beginning of the song is an unauthorized sample. YouTube spokesperson Jack Malon says, “We removed the video after receiving a valid copyright notification for a sample included in the video. Whether or not the video was generated using artificial intelligence does not impact our legal responsibility to provide a pathway for rights holders to remove content that allegedly infringes their copyrighted expression.”

While UMG was able to remove the song based on an unauthorized sample of the producer tagline, it still leaves the legal question surrounding the use of voices generated by AI unanswered. 

In “Heart on My Sleeve”, it is unclear exactly which elements of the song were created by the TikTok user. While the lyrics, instrumental beat, and melody may have been created by the individual, the vocals were created by AI. This creates a legal issue as the vocals sound like they’re from Drake and The Weeknd, but are not actually a direct copy of anything. 

These issues may be addressed by the courts for the first time, as initial lawsuits involving these technologies have been filed. In January, Andersen et. al. filed a class-action lawsuit raising copyright infringement claims. In the complaint, they assert that the defendants directly infringed the plaintiffs’ copyrights by using the plaintiffs’ works to train the models and by creating unauthorized derivative works and reproductions of the plaintiffs’ work in connection with the images generated using these tools.

While music labels argue that a license is required because the AI’s output is based on preexisting musical works, proponents for AI maintain that using such data falls under the fair use exception in copyright law. Under the four factors of fair use, advocates for AI claim the resulting works are transformative, meaning they do not create substantially similar works and have no impact on the market for the original musical work.

As of now, there are no regulations regarding what training data AI can and cannot use. Last March, the US Copyright Office released new guidance on how to register literary, musical, and artistic works made with AI. The new guidance states that copyright will be determined on a case-by-case basis based on how the AI tool operates and how it was used to create the final piece or work. 

In further attempts to protect artists, UMG urged all streaming services to block access from AI services that might be using the music on their platforms to train their algorithms. UMG claims that “the training of generative AI using our artists’ music…represents both a breach of our agreements and a violation of copyright law… as well as the availability of infringing content created with generative AI on DSPs…” 

Moreover, the Entertainment Industry Coalition announced the Human Artistry Campaign, in hopes to ensure AI technologies are developed and used in ways that support, rather than replace, human culture and artistry. Along with the campaign, the group outlined principles advocating AI best practices, emphasizing respect for artists, their work, and their personas; transparency; and adherence to existing law including copyright and intellectual property. 

Regardless, numerous AI-generated covers have gone viral on social media including Beyoncé’s “Cuff It” featuring Rihanna’s vocals and the Plain White T’s’ “Hey There Delilah” featuring Kanye West’s vocals. More recently, the musician Grimes recently shared her support toward AI-generated music, tweeting that she would split 50% royalties on any successful AI-generated song that uses her voice. “Feel free to use my voice without penalty,” she tweeted, “I think it’s cool to be fused [with] a machine and I like the idea of open sourcing all art and killing copyright.”

As UMG states, it “begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.”

While the music industry and lawyers scramble to address concerns presented by generative AI, it is clear that “this is just the beginning” as @ghostwriter977 ominously noted under the original TikTok posting of the song. 

Tick-Tock, TikTok: Could the Party Actually Stop?

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By: Enny Olaleye

Over the past couple years, the United States government has expressed several concerns about the potential security risks associated with TikTok, a popular social media application that has amassed over 1 billion active users every month. Some officials have suggested that TikTok could be used by the Chinese government to collect data on American citizens or to spread propaganda.

According to TikTok, the social media app serves as a platform for users to “come together to learn, be entertained, and grow their business, as they continue to create, discover and connect with a broader global community.” TikTok now serves as one of the largest worldwide social networks, coming in third after Facebook and Instagram. This is evidenced by its widely popular international status—approximately 150 million Americans alone are active members of the social media app—making up nearly half of the U.S. population. 

As a result of the app’s widespread popularity in the United States, government officials have become wary about the potential risks the social media app poses. In August 2020, former President Donald Trump issued an executive order that would have effectively banned TikTok in the US unless it was sold to an American company within 45 days. This order cited concerns about national security and the app’s handling of user data, as the US government was worried that user data could be accessed by the Chinese government. Additionally, the US government accused TikTok of censoring content that would be unfavorable to the Chinese Communist Party and allowing misinformation to spread on its platform. 

However, the ban was temporarily blocked by a federal judge and the Biden administration later put the order on hold to conduct a broader review of security risks posed by Chinese technology. In June 2021, President Biden signed an executive order that expanded the scope of previous orders related to Chinese-owned apps and other technology. The order aimed to protect US citizens’ sensitive data and prevent the Chinese government from gaining access to that data through apps like TikTok. In September 2021, the Biden administration announced that it would not pursue a ban on TikTok, but it would continue to monitor the app’s potential security risks.

In response, TikTok has repeatedly denied these allegations, saying that it stores U.S. user data on servers located in the U.S. and that it has never provided data to the Chinese government. The company has also taken steps to distance itself from its Chinese parent company, ByteDance, by appointing a U.S. CEO and creating a U.S.-based data center.

Unfortunately, TikTok’s actions have done little to appease the concerns raised by federal officials and have only led legislators to double down on taking action against the platform. As of March 2023, the Biden administration has called on TikTok’s parent company, ByteDance, to either sell the app or face a possible ban in the United States because of concerns about data privacy and national security. The White House has also signaled its support for draft legislation in the House of Representatives that would allow the federal government to regulate or ban technology produced by some foreign countries, including TikTok. The federal government and multiple states have also already banned TikTok on government devices. 

Thus, the question arises: “Can the federal government actually do that?” 

Well—not necessarily. First and foremost, the U.S. government does not have the authority to ban speech, as free speech is a right guaranteed to citizens under the First Amendment of the U.S. Constitution. Posts on TikTok are protected by the First Amendment since they are a form of speech. While the Biden Administration has replaced the Trump order with one that provides a more solid legal ground for potential action, it still cannot override the First Amendment protections afforded to speech on TikTok.

Further, if this issue is brought to the courts, proponents of a TikTok ban will most likely claim the national security risks posed by the app are self-evident. Proponents of a ban believe that TikTok’s relationship to China and how Chinese law requires companies to cooperate with all requests from Beijing’s security and intelligence services creates obvious security problems. However, that line of reasoning is unlikely to find support with federal judges, who will be weighing the potential security risks against the imposition of real-world restrictions on the rights of 150 million Americans to post and exercise free speech on an extremely popular platform. 

Even if judges were to rule that a TikTok ban is neutral when it comes to content and viewpoint, the government would still have to prove that the remedy is narrowly tailored to serve, at a minimum, a “significant government interest,” in order to justify a ban and the corresponding restriction on speech. To ensure narrow tailoring, the Supreme Court developed the standard of strict scrutiny when reviewing free speech cases. To satisfy strict scrutiny, the government must show that the law meets a compelling government interest and that the regulation is being implemented using the least restrictive means. However, narrow tailoring is not confined to strict scrutiny cases, as seen in McCullen v. Coakley, where the Court determined that a Massachusetts law regulating protests outside abortion clinics was not content based and, thus, not subject to strict scrutiny.

As of April 2023, there has been no federal legislation passed that would permit an outright ban of TikTok in the United States. While the First Amendment likely limits the government’s ability to ban the app outright, it could still target TikTok’s ability to conduct U.S.-based financial transactions. That includes potential restrictions on its relationship with Apple and Google’s mobile app stores, which would severely hamper TikTok’s growth. By targeting conduct instead of speech, such a restriction would be outside of the First Amendment’s protections.
Regardless, amid all this government action, there is one thing that has made itself apparent. As the federal government escalates its efforts against TikTok, it’s coming up against a stark reality: even a politically united Washington may not have the regulatory and legal powers to wipe TikTok off American phones.