A federal court may have to decide who owns the “who dat” phrase in footnote. The NFL, which has a reputation of claiming a wide array of trademark rights against fans, has sent letters to various companies and fans telling them not to use the phrase “who dat” in combination with the Saints’ fleur-de-lis logo. It has led to Louisiana Sen. David Vitter (fresh from his prostitution scandal) to cry foul and demand that “who dat” belongs to the people. In the meantime, two fans have claimed ownership to the phrase since 1966.
I will not repeat my view that the extent of copyright and trademark protections today has become ridiculously broad in relation to commonly use phrases and images (here and here and here). Here the NFL is saying that it will not object to people using “who dat” so long as it does on appear with the Saints’ fleur-de-lis.
In response, Vitter is announcing that his staff will distribute teeshirts that read “Who Dat Say We Can’t Say Who Dat?” I would be more impressed if Vitter proposed something substantive in terms of legislation rather than apparel like a broader exception for public use of common symbols, images, phrases, and material.
Instead, Vitter seems to be arguing that it belongs to Saints fans — as opposed to everyone else (most importantly Colts fans). He stressed in an e-mail the phrase belongs “only to us here in Who Dat Nation, and not the NFL.”
That claims may be contested by WhoDat Inc., owned by two specific Saints fans Sal and Steve Monistere who claim rights to the phrase. In 1983, Steven Monistere produced the song “Who Dat Say They Gonna Beat Dem Saints” with Aaron Neville and several Saints players. They say that the have the only federal trademark for “Who Dat.”