Thread by @lexlanham

it's monday morning & i want to talk about pegging the patriarchy.

instagram.com/p/CTydOGiAqDK/

this is tricky territory for a few reasons (& not just the ones you might think). we're at the intersection of "avoid overpolicing trademark rights in expressive uses" & "use IP law to help small indie artists, often POC, profit off of their creative works."

supermodel & sexual wellness brand co-owner cara delevingne wore a dior power suit (umpire vest? buckle corset?) emblazoned in red with the words "peg the patriarchy" to the met gala, nailing the theme of "in america: a lexicon of fashion,” where millions saw & contemplated it.

canadian business owner luna matatas promptly spoke out, accusing delevingne of "tr[ying] to pull it off as their own" & "owning it as if it wasn't already owned" with "no credit to me, the creator and owner of the trademark" [in canada]. she called it "gross" & "colonialis[t]."

as US trademark lawyers interviewed by media have noted, delevingne's (& dior's) use was likely protected by the 1st amendment. she isn't selling anything in commerce but simply displaying a somewhat charged message in a way unlikely to confuse.

and we should be skeptical of "i came up with the phrase so i control who else can say it or wear it, and/or i should get paid when someone wants to use it" message. that's not where rights in phrases like JUST DO IT come from--they come from strong association w/ a brand.

TM law is not about locking down language or granting exclusive rights based on having a cool idea--it's designed to protect symbols that come to serve as distinctive source indicators. here's LM's etsy shop: her use of PtP is also pretty ornamental. etsy.com/shop/GlitterGi…

BUT i'm sympathetic to matata's argument & outrage. it's easier for big brands to get that distinctiveness. & it's often small independent creators & marginalized folks who struggle to profit from their creativity. IP law isn't designed to serve them.

nytimes.com/2017/06/06/mag…

& of course, indie entrepreneurs & activists are never getting the same copious, sophisticated legal advice at every step of brand-building as are the nikes & apples & diors. so their rights aren't going to be as air-tight.

what we end up with in these stories is some hybrid of a trademark (or in other cases copyright) right & a dignitary right. & the public pushback comes from a messy mix of IP instincts and fairness/solidarity/outrage instincts that can serve an artist well, i think.

& of course, this quote set me off. anyway #pegthepatriarchy! where do your sympathies lie? or is there anything i'm missing about LM's rights?

https://twitter.com/lexlanham/status/1439923887878426624?s=20