On Friday, Authors Alliance was pleased to join on an amicus brief in an important and fast-moving trademark case before the Second Circuit Court of Appeals in Vans, Inc. v. MSCHF Product Studio, Inc. Vans, creator of a variety of well-known skater shoes, alleged that MSCHF (an art collective, based in Brooklyn, pronounced “mischief”) had infringed its rights by “blatantly and unmistakably incorporat[ing] Vans’ iconic trademarks and trade dress” in MSCHF’s own shoe, which MSCHF called the “Wavy Baby.” For its part, MSCHF and the associated artist who designed the shoe (the artist’s stage name is “Tyga”) defended its creation by arguing that its shoes are a parody and an artistic expression of Van’s trademarks, thus protected by the First Amendment. MSCHF, for this project and many others, primarily uses “existing, potent, pieces of culture as [their] building blocks and working medium to create new works.”

Earlier this year, the Eastern District of New York granted a temporary restraining order and preliminary injunction against MSCHF, preventing distribution of the Wavy Baby shoes. The court reasoned that the Wavy Baby shoe was likely to cause consumer confusion and that MSCHF’s First Amendment defense was unlikely to succeed. MSCHF appealed, and the case is currently before the Second Circuit Court of Appeals. 

In the past, Authors Alliance hasn’t weighed in on trademark lawsuits like this. But one of the major issues we care about is making sure that authors can freely communicate their ideas and reach broad audiences. We know that our members “write to be read” and hope to see their knowledge and products of their imagination widely disseminated. Often, restrictive interpretations of copyright law can impose a barrier for authors. That’s why we’ve focused on things such as fair use, which gives authors the right to comment, criticize, and create parodies freely, without infringing copyright, even when using or referencing material from other creators, and even when those materials include popular brands and culturally significant materials. 

Other laws, such as trademark law, can impose significant barriers for authors as well, and other rights such as the First Amendment can protect authors. Our brief doesn’t take a position on who should win the lawsuit. What we do take a position on is that First Amendment protections in trademark suits be taken seriously;  authors and artists rely heavily upon those protections to comment on modern consumer culture. Thus, the brief argues that the Second Circuit should reinforce a clear framework for courts to dispose of unconstitutionally oppressive trademark suits early in the litigation process, as a matter of law. As our amicus brief argues,  “[t]rademark 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.” Without a clear framework for quick disposition of these suits, our amicus brief argues, “deep-pocketed brand owners can chill artists’ exercise of their First Amendment rights simply by threatening or filing lawsuits that are unlikely to prevail on the merits but that will entail long, costly discovery battles.”

Thanks to the attorneys at Lex Lumina PLLC for drafting this brief, and the visual artists, Mason Rothschild and Alfred Steiner, who joined us as amici curiae.