There has been an abundance of discussion of Kendall Jenner’s “social justice” Pepsi ad that proved a disaster for the company after Black Lives Matter objected that (even though no signs in the commercial referred to BLM) the commercial trivialized BLM. The commercial showed people marching with signs saying things like “Join the conversation” and Jenner giving a police officer a Pepsi. When I saw it, I just thought it was sappy and shallow. It was an effort of another major company to sell its product on a social justice theme. Even if you want your Pepsi with a side of social justice, companies want to be praised as having a conscience without actually saying anything controversial or edgy. To corporate and media officials, Jenner wiping off her make up was a brave and edgy moment. (Apparently a starlet taking off her makeup is a brave and inspiring thing to behold). The commercial however has raised a legal question that returns to a prior subject discussed on this blog: copyright and trademark laws. It appears that not only did BLM hate the commercial, so did the police. The San Francisco Police have threatened a lawsuit stating the image of a badge looks like their official badge, and used without their permission. Once again, I do not know how we allowed Congress to put us in this place where showing a police badge (or in this case a badge resembling a police badge) can get you sued.
The police department has been a bit vague on the basis for the threatening lawsuit in using its “logo” but the assumption is that it is a trademark or copyright action. There are some laws limiting the use of such images separate from trademark and copyright. I would have equal problem with those laws in being used selectively in a case like this one.
Ironically, Pepsi proclaimed that the ad was a testament to its vision of “various groups of people embracing a spontaneous moment … to live life unbounded, unfiltered and uninhibited.” The police department however made it clear that the company was not nearly as “uninhibited” as it may assume.
We have been discussing a disturbing trend in copyright and trademark claims over things occurring in public or common phrases or terms. (For a prior column, click here). We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here and here and here). This included a New York artist claiming that he holds the trademark to symbol π. We have also seen an English decision finding that taking photographs of London icons are also violations as well as a claim by the New York Port Authority that it owns the image of the New York skyline.
In the end, it did not matter. The ad went as flat as a one day old Pepsi. The company pulled the ad and apologized to anyone who would listen and begged to be forgiven for trying “to project a global message of unity, peace and understanding.”
However, the company should be careful on how it posts that apology. Specifically, it should not show Jenner making an actual peace sign because Lindsay Lohan appears to claim that image.
What do you think?
Strange words on the police patch–gold in peace, iron in war. Why.
Hafta say something original.
Oh, it’s up against the wall Redneck Mothers.
Mothers who have raised their pigs so well.
He’s 34 and stinking in honkey tonks.
Kickin hippies arses and raising hell.
He sure do like..
His Frisco cop badge.
He likes to wear it out when going to LA.
There’s a wing and a dong on his badge.
People living there are dumb and gone.
Stupidly overdone trademark laws.
Stupid move on the part of the San Francisco attorneys. But then, what do you expect from attorneys…
Come on JT, really? Ya gots to throw out the red meat fer these so-called people. Ya should have brought up Obama, or Hillary then you would get action on this site. Of all the crap that the Trump idiots are pulling and for 3 straight days you bring up these stories? I know your habit of NOT writing anything bad about Republicans but really? Throw them a bone about how when Democrats do something anything, its always your view they are breaking the law. But when Republicans do it they are true Americans and have the right to do anything they want, because the views of most of your readers are what Nixon said, if the President does it its not illegal. BUT if a Democrat puts his or her toilet paper over the top or under, that we have to spend millions to prove something that’s not there. Some of you may think that this rant is stupid, some might think it’s true…Like FOX NEWS..You decide.
What do I think? I think I cannot discern a story here. The badge does not look like the Pepsi can.
Maybe it’s as simple as this: the SF Police Department may not want to be associated in any manner with the vapid Kendall Jenner. Can you blame them?
I don’t blame the City for requiring permission, but even if every manufacturer of soda pop placed in the stream of commerce used SFPD’s logo in its commercials, how does it substantially affect interstate commerce permitting such regulation? How is prohibiting use of the logo through trademark law a “rational means of regulating commerce in that product” (Gonzales v. Raich)? How is this scenario different from Congress attempting to regulate interstate commerce in firearms by prohibiting them from school zones (which was held unconstitutional in US v. Lopez (1995))?
Shouldn’t this be solely a state law issue?
First, why would BLM believe the protest was about them? It’s mostly Caucasian and Asian’s marching, with a token Muslim hijab wearing photographer. Everyone is smiling and happy, and hugging each other. In fact, this ad looked like none of the recent protests by either the BLM or anti-Trump or Occupy Wallstreet. No one is angry or shouting or getting in the faces of any of the police officers. I would bring my little boy to the fantasy protest in the commercial. In fact, they don’t seem to really be protesting anything, but more like having a Zoolander block party. None of the signs are against anything. It’s just let’s talk and peace. And a couple of African Americans happily dancing. Literally. That’s it. I thought the ad meant that Kendall Jenner was not too snooty to join the average people having a block party. At least Kendall is actually famous for something – being really, really ridiculously good looking. She has a job and actually works, so that’s something to be proud of. (And yes, I know there is a wide range of definitions of “works.” The rest of the Kardashian show has had me scratching my head the couple of episodes that I wasted my time watching.
I don’t see how the BLM has any standing to sue. Do they think they are the only protest that has occurred in recent history?
As for the SF Police Department, they probably have a policy where policemen may not wear their uniform in commercials or other public events without permission. Other than that, the police were not threatening the really super nice protesters, but were probably just keeping them from wandering into the street and getting hit by a car. You know, like crossing guards. And the cop gave a nice smile when he drank that Pepsi, because of all the peace and love and kindness emanating from the crowd. So it didn’t damage their reputation. The only position I can think of is that it violates their policy for their uniform to be used commercially, and their copyrighted logo was used without permission or payment. Not sure how much legal standing they have, and they certainly suffered no damages, except perhaps for any fee that they would have earned for the use of the badge.
“Once again, I do not know how we allowed Congress to put us in this place where showing a police badge (or in this case a badge resembling a police badge) can get you sued.”
Commerce Clause jurisprudence raises its ugly head once again to give us a strong centralized government in a manner I don’t think was ever intended. Lindsay Lohan may have the edge on brilliance in this area, but my favorite is Pat Riley’s “Three-peat.” Riley has my vote for Einstein in Converse Chuck Taylor All-Stars.
I always find the seminal decisional law fascinating. Wickard v. Filburn, decided during the second world war, opened the floodgates for Congress to legislate caps and penalties sunder the Commerce Clause on agricultural production at the local level. In Wickard v. Filburn, the victims were conflicting state and local laws protected by the 10th Amendment and farmers like Roscoe Filburn for exceeding his annual wheat crop allocation, even though the excess was intended for his own personal use, i.e., to feed his own farm animals.
Then, seventeen years ago, in Gonzales v. Raich, the Supreme Court had the opportunity to overrule Wickard v. Filburn by preventing Congress from criminalizing the act of Angel Raich growing a pot plant in her backyard up in Oakland. Overruling Wickard v. Filburn potentially could have limited Congress’s authority to regulate commerce between states only, not local commerce or personal use of local goods not within the stream of commerce. That didn’t happen. So long as such use, in its aggregate (the aggregation principle), theoretically would substantially effect interstate commerce, congressional legislation is constitutional under the Commerce Clause. It effectively neuters 10th Amendment rights reserved to the States.
(That stalwart proponent of limited government and member of the Federalist Society, Justice Antonin Scalia, concurred in the outcome of Gonzales v. Raich, even though he heavily criticized Wickard v. Filburn at every opportunity. My understanding of his occurrence is that the aggregation principle isn’t “nuanced” enough:
“[T]he authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” No other Justice agreed with his concurring opinion.
Justice Scalia claimed the Necessary and Proper Clause allowed the regulation of pot grown for personal use, which effectively would make any congressional act constitutional if it were necessary and proper, which he construed as “appropriate” and “plainly adapted,” citing Chief Justice John Marshall’s interpretation. How either of them derived that interpretation is why they were Justices I guess. It also allowed him to get the result he wanted, i.e., the continued criminalization of marijuana, and avoid supporting the rationale of Wickard v. Filburn by adding that the law had to be appropriate and plainly adapted.
The only reasonable explanation for his concurrence is that Justice Scalia favored not only a strong central government, which belies a primary tenet of the Federalist Society, but an ever-expanding centralized government.)
Raich was a 2005 case, twelve years ago, not seventeen years ago.
LOL. Where do we go to give up?
No permission no usage. No brainer.
SF should be able to legally stop its police badge from being used in a commercial.
There used to be a get out of jail free card for using uniforms, badges, etc. in movies, which I would expect would extend to ads. It is an insipid ad, but not enough to sue over. SFPD is over-reacting.
I suspect a patent lawyer advised them you protect your trademark or you lose it. There was a case a while back involving some philanthropy which had a logo that looked somewhat like Best Buy’s ‘Geek Squad’. IIRC, Best Buy and their lawyers were brutal with those people.
“Once again, I do not know how we allowed Congress to put us in this place where showing a police badge (or in this case a badge resembling a police badge) can get you sued.”
You don’t know? Of course you do, you’re just not wanting to admit that by empowering Congress and the President to do things you like regardless of the constitution, you end up with them using that same power to do things you don’t.
It’s called progressivism and it sucks.
Ding! Ding! Ding! And we have a winner!
TWO comments into the threads aaaannnddd… it’s Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls! Da Libruls!
You sure are a hoot, Oily…
Oh wait… you were serious?
Oh… never mind…
Actually, w/ BLM, it’s called ‘free speech’… it’s in the Constitution, Oily… check it out sometime… it’s a good read… BLM was free to complain, ridiculous or not, but they did not sue… just complained… Pepsi was free to continue running the ad, which was embarrassing IMHO, and chose not to…
W/ the SFPD, you could always check w/ the department and see what they say but I’m guessing they don’t like it because it could be construed as a commercial endorsement on the part of the PD… could Pepsi use anyone else’s recognizable logo for commercial purposes w/out ramifications, like the NY Yankees? I’m guessing not… and how would people be reacting if a bunch of US soldiers in uniform appeared? Would the military like it? How about you?
You guys need to get out more… seriously…
Try using anything related to the NBA they are the usage Nazis beyond.
And here I was trying to be the first comment, Stupidity. Yeah, BLM is all about free speech and the constitution. They routinely stand in defense of all people regardless of skin col….oh wait, you were serious? Oh…never mind.
Actually, earlier this century content creators – movie makers, musicians, etc. – fought back hard first against peer-to-peer apps like Napster and later Youtube because internet users were downloading the content they’d produced without paying for it. Users were effectively stealing it – though few of them recognized it as theft. So the creators sought stronger protections from Congress to protect their intellectual property rights in the content they produced.
We got to this point because the users think they are entitled to content without paying for it but the content creators want to be paid for their work product. Conflicting interests.
You’re right, Scott. That’s exactly where this issue came from. It will run its course, like everything else does.
I bet our charlatan president would never sue over something so silly. A great role-model for the country.
Dave. Your girl lost. Move on.
No, Foxtrot, she got more votes. Democracy lost.
She did?? I thought I read where it was 306 Trump to 232 Clinton.