MSCHF Settles Upgraded Shoe Dispute With Nike And Promises (Wink, Wink) To Buy Back Satan Shoes

from the good-luck-getting-those-shoes-back dept

There were actually a whole bunch of interesting legal questions raised by Nike's trademark lawsuit against MSCHF the weird "structured chaos" organization that seems to basically sell publicity stunts as a business model. It had teamed up with the musician Lil Nas X to sell 666 pairs of upgrade Nike Air Max 97, complete with red ink (and, it claimed, a single drop of blood) inserted in the sole of the shoe. The lawsuit raised issues regarding first sale/resale rights, art, freedom of expression, trademark, ownership, property, dilution, confusion and more. And... all of it's going nowhere, because a settlement has been reached.

This isn't that much of a surprise. MSCHF execs have admitted in the past that lawsuits only raise their profile, which may be true, but they're also crazy fucking expensive. MSCHF already got the benefit of the publicity bump from the lawsuit, and now probably sought to get things done and over with as quickly as possible -- and that includes agreeing to issue a "voluntary recall" of the shoes -- 665 pairs of which it had already shipped out. MSCHF also agreed to do the same thing for the much smaller number of Jesus shoes it had sold two years ago in a similar stunt.

Of course, the whole thing seems like a charade. It's a voluntary recall, in which MSCHF is supposed to buy back the shoes at their original retail prices "in order to remove them from circulation." But, uh, anyone who has those shoes in their possession now knows that these shoes are way more valuable because of this dispute. I'd be amazed if anyone actually agreed to sell the shoes back to MSCHF, because these shoes just went from already established rare collector's items, to rare collector's items with an even more insane story including the fact that Nike wants them to disappear.

In some ways, this form of settlement just shows how ridiculous the lawsuit was in the first place. Nike's statement on the settlement is hilarious:

“As part of the settlement, Nike has asked MSCHF, and MSCHF has agreed, to initiate a voluntary recall to buy back any Satan Shoes and Jesus Shoes for their original retail prices, in order to remove them from circulation. If any purchasers were confused, or if they otherwise want to return their shoes, they may do so for a full refund. Purchasers who choose not to return their shoes and later encounter a product issue, defect, or health concern should contact MSCHF, not Nike.”

I mean, c'mon. No one who bought this shoe was "confused." No one's going to want to return it. And, no one's going to contact Nike about any "defect" or "health concern." The whole thing is silly. And yes, that's even though there were some foolish pundits on certain infamous news channels who tried to make a culture war issue falsely claiming Nike was making these shoes. So, sure, Nike can point to the lawsuit as proof they had nothing to do with the shoes, but responding to the brigade of trumped up controversial people is lame. Pretty much everything about this story has been about posturing, rather than anything substantive.

Filed Under: art, confusion, dilution, first sale, free speech, jesus shoes, lil nas x, satan shoes, tarnishment, trademark
Companies: mschf, nike

Nike Sues MSCHF Over Its High Profile Satan Shoes, Claiming Unsafe Blood May Dilute The Exalted Nike Swoosh

from the 1st-sale-and-dilution dept

Well, here's a fun one. Over the weekend, the musician Lil Nas X announced that, along with MSCHF, he was selling "Satan Shoes." From the beginning this was all just a silly publicity stunt that more or less played out probably exactly as those involved expected. If you don't know what MSCHF is then it's worth reading up on the organization that claims it's based on "structured chaos" and only ever so often randomly drops some kind of offering for sale, usually in limited quantities that get lots of attention and sell out quickly. As was summarized in a Business Insider article about MSCHF last year:

There's no apparent thread connecting MSCHF's slew of projects: The team has built a browser add-on that disguises your Netflix watching as a conference call, designed a squeaking rubber chicken bong for smoking weed, and created a YouTube channel solely consisting of videos of a man eating everything from a tub of mayonnaise to a photo of Pete Davidson. But for Whaley, the lack of continuity is the point: As long as the team can figure out the resources to create and launch a product, "nothing is safe."

"Our perspective is everything is funny in a nihilistic sort of way," Whaley said. "We're not here to make the world a better place. We're making light of how much everything sucks."

The company originally got the most attention for another pair of shoes -- the "Jesus shoes." That involved a modified Nike Air Max 97 with -- they claimed -- holy water injected into the soles of the shoe. The Satan shoe is a somewhat obvious follow up to the Jesus shoe. This time, 666 pairs of the shoe were made, also upcycled Nike Air Max 97s. Rather than having "holy water" injected into the soles, this one included red ink, with a promise of a single drop of blood (whose blood is never stated), and then some red stitching and embellishments on the shoes.

A whole bunch of people idiotically freaked out about this, like we were back in the Satanic Panic from the 1980s. Even worse, though the whole thing was (1) clearly a stunt and (2) obviously not endorsed by Nike, the usual brigade of pearl clutching culture warriors immediately insisted that Nike was behind the whole thing, and being a culture warrior seems to have more power when you can blame a company for it. Nike was quick to point out that it had nothing to do with all of this, but by Monday the company decided to sue MSCHF over the shoe, making a variety of trademark infringement claims. The lawsuit gives us excellent images such as this one:

Obviously, if you buy a pair of Nikes, you can resell them. And there is the concept of the first sale doctrine that allows you to resell goods that you bought that are protected by copyright or trademark laws. However, as law professor Alexandra Roberts notes in a detailed Twitter thread, 1st sale does not apply to "materially altered" products. Of course, that doesn't mean that Nike will win either. You can argue over whether or not these shoes are actually "materially" altered, or just cosmetically so. Nike includes the ink/blood in the sole as evidence that the alterations are material:

The material alterations include at least referring to the shoe as the Satan Shoe, adding red ink and human blood to the midsole, adding red embroidered satanic-themed detailing, adding a bronze pentagram to the laces, and adding a new sock liner.

Frankly, this feels... pretty weak. There are examples of artists taking others' products -- even those protected by trademark -- and altering them for artistic purposes.

Much of the trademark claims rely not so much on the likelihood of confusion regarding the origin of the shoes, but rather on dilution -- including both blurring and tarnishment. We've argued in the past that it's insane that dilution and tarnishment are a part of trademark law, as they appear to be complete bastardizations of the purpose and intent of trademark. Trademark law -- unlike copyright and patent law -- is really supposed to be about consumer protection. It's supposed to be so that users aren't buying a product they believe is made by this reputable entity, only to be tricked as it was actually built by that unreputable entity. It was only more recently -- through a concerted effort by trademark lawyers who sought to cast trademarks as "property" and put them next to copyrights and patents -- that the law morphed into something that included "tarnishment" and "dilution."

But... those do exist, and will be a key part of the lawsuit if it moves forward and is not settled quickly (as may well happen).

MSCHF’s use of the Nike Asserted Marks and/or confusingly similar marks has caused, continues to cause, and/or is likely to cause irreparable injury to and dilution of the distinctive quality of the Nike Asserted Marks in violation of Nike’s rights under 15 U.S.C. § 1125(c). MSCHF’s wrongful use of the Nike Asserted Marks is likely to cause dilution by blurring and the whittling away of the distinctiveness and fame of the Nike Asserted Marks. In addition, MSCHF’s wrongful use of the Nike Asserted Marks in connection with satanic imagery is likely to cause dilution by tarnishment.

I am hard pressed to see how this shoe would "whittle" away at the distinctiveness of Nike's brand, but trademark law can be pretty silly sometimes. Nike also does claim that there is confusion and highlights a bunch of social media posts from very, very stupid people who actually believe the shoe comes from Nike itself.

Of course, there's a decent likelihood that MSCHF is loving every minute of this. The company has said in the past that a lawsuit would "help increase the value" of the products it releases.

Meanwhile, the Fashion Law blog has a detailed analysis of the legal issues here (written before the lawsuit was filed) that also notes that 1st sale might not apply here, given the alterations. However, it also highlights that it could make a fair use claim in response:

On the other hand, given the lengths to which MSCHF routinely goes to build a narrative around its individual drops (all of which are relatively limited in quantity), there is a chance that a fair use claim – satire, maybe? – might serve to shield it from liability for making use of the Nike logo in the process.

Lots of interesting legal questions here -- but on the whole, the entire thing just seems so... freaking... pointless. The shoes are clearly a publicity stunt. A bunch of people fell for it, and now Nike is playing into it with a lawsuit.

It's just a silly pair of shoes, people.

Filed Under: blood, confusion, dilution, drop, lil nas x, publicity stunt, satan shoes, shoes, swoosh, tarnishment, trademark
Companies: mschf, nike

Don Henley Tells Senators: We Must Change Copyright Law... Because The People Like TikTok?

from the what-are-you-saying-now-old-man? dept

As we noted, last Tuesday, in the midst of a pandemic and nationwide protests about police brutality, the Senate Judiciary Committee's IP Subcommittee (well, three members of it, at least, one of whom seemed to think that Section 512 of the DMCA was actually Section 230 of the CDA) decided it was a priority to host a hearing on copyright law. Specifically, the hearing was in response to the Copyright Office's bizarre, ahistorical take on Section 512 of the DMCA that ignores the public as a stakeholder. It seemed particularly bizarre to have as the first speaker on the panel, Don Henley, who is one of the most successful recording artists of all time -- his albums are literally the 1st and 3rd best selling albums of all time -- with a history of being wrong about the internet.

Henley seemed to recognize that it was a bad look for a super successful, aging rocker to be the voice of musicians on the panel (good for him) and insisted that he was really there to speak up for less well known musicians who didn't have his reach.

I am present, today, not to be contrary, not to advance a personal agenda (at age 73, and indefinitely homebound by the Covid‐19 pandemic, I am in the final chapter of my career), but I come here out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us. It is truly unfortunate – and patently unfair – that the music industry is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity; people whose voices would never be heard were it not for hearings such as this one being held, today. So, I am compelled to seize this rare opportunity to discuss aspects of the fundamental issues that are foremost in the national conversation, at this anxious moment – fairness, rights, mutual respect and … in this case, economic justice and equal opportunity.

Of course, in the paragraph immediately after calling for a "national conversation" and "mutual respect" he trashed the entire tech sector and anyone who criticized him as a shill:

But, the smear campaign has already begun. I have been targeted by the digital gatekeepers and their many shills and surrogates. It began last Friday in the newspaper that belongs to Mr. Bezos, and it continues, today. Big Tech was probably hoping that this hearing would be canceled, or that I would be intimidated to the extent that I would not testify. But, I will not be silent on this issue. I want to do everything in my power to strengthen the property rights of music creators of all ages, races and creeds; all styles, from hip‐hop to honky‐tonk, from rock, to rap, to rhythm & blues. From jazz to folk, to heavy metal. To change or improve outdated laws and regulations that have been abused for over 20 years by Big Tech … the enormous digital platforms that facilitate millions of copyright infringements, monthly.

From there he gave a bunch of strained and mostly debunked talking points about the notice-and-takedown provisions of the DMCA which he finds (of course) to be inadequate. Having discussed all of those in the past, I don't really want to revisit those silly talking points all over again. But I did want to point out, yet again, how Henley's "those darn kids these days" attitudes, undermines his claims of wishing to support up and coming artists. In particular, he attacks TikTok:

In a world where more than 500 hours of video are uploaded to YouTube every minute, more than 1 billion videos are viewed on TikTok per day, and there are over 500 million daily active users on Instagram, it is clear that the massive online services are flourishing while artists have no ability to combat the rampant infringement that occurs on these platforms

That's an odd choice to pick on. While the labels and publishers have been fighting over licensing on TikTok, this line of argument -- that TikTok is just some den of piracy -- seems completely at odds with its cultural impact.

Indeed, TikTok has become the new music discovery platform of the younger generation, and some argue it has taken over the music industry because of that. It's also created a bunch of new music superstars, most notably in the persona of Lil Nas X, the hugely successful young, black, LGBTQ role model.

So, it becomes difficult to square the idea -- put forth by an aging white rocker claiming to represent those "struggling in relative obscurity" -- that TikTok is some damaging tool to up-and-coming musicians, when we see how it has enabled a young, black, LGBTQ star to rise from that obscurity.

And, yes, of course there are some legitimate points buried within Henley's talking points. It's difficult to make a living as a musician. But that's not piracy's fault. It's always been difficult to make a living as an artist. But the internet and the freedom that it's created has enabled many, many, many more artists to have a chance -- including some who would never have had a chance under the old system. As we've discussed for many years, under the old label system, through which Henley grew up, you had record labels acting as gatekeepers. They, and they alone, chose who would be successful and who would not. The internet has obliterated that system. There's still a place for labels, but they don't control the gates anymore. There are now new avenues for artists to go direct to their fans -- to build followings and fans and supporters, with TikTok just being the latest in a long line of platforms that have brought us new artists, doing an endrun around the old system.

Of course, whenever that happens, the old guard complains. Not because it's actually harming music. But because it's a lessening of their exclusive power. This is the same thing we've always seen from the antiquated wing of the legacy copyright industries. Every "new" thing is painted as a den of piracy. Back in the early 20th century, songwriters flipped out at player pianos and the "piracy" they created. The 1909 Copyright Act was literally a response to player pianos. Indeed, in the hearings over that Act, composer John Philip Sousa -- the Don Henley of his time -- testified before Congress whining that:

“When I was a boy—I was born in this town—in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. ... Last summer and the summer before I was in one of the biggest yacht harbors in the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an aeolian, or something of the kind."

The horrors of hearing a gramophone from your giant yacht. I'm sure Don Henley can sympathize. Of course, in retrospect this all looks silly. Here was Sousa complaining about the record player -- the very thing that eventually built the entire recording industry. But, really, what he's hooked into is the nostalgia of how things "used to be." The nostalgia of "young people together singing the songs of the day or the old songs."

And of course that trend continued. When radio came on the scene, the makers of records screamed about how it was "piracy." And when recordable cassettes came on the market, we were told that "home taping is killing music." Napster was supposed to be the death of industry, as was any number of other services.

Meanwhile, if one spends any time with TikTok, I'd argue that unlike Henley's view of it, it seems like the perfect example of technology and innovation -- including the innovation-promoting setup of the DMCA's provisions -- and brings us right back around to a situation in which "young people today" are "singing the songs of the day or the old songs." Indeed, some of the most popular parts of TikTok, and those that have helped people like Lil Nas X become superstars, is the fact that TikTok encourages people to copy and sing and dance along with the "songs of the day or the old songs." And it, and other similar platforms, are helping new artists break through every day -- without those artists needing to get the approval of an old has been exec at a record label.

History tells us which path makes sense. Henley is choosing the Sousa path -- the successful old musician, complaining about what he's hearing from the biggest yacht not being to his liking.

Filed Under: copyright, culture, dmca, dmca 512, don henley, lil nas x, notice and takedown, piracy
Companies: tiktok

YouTube Takes Down Chanukkah Parody Of Old Town Road... Because It Infringes On A Date?

from the say-what-now? dept

The Maccabeats, as I have just discovered, is an Orthodox Jewish a capella group that specializes in Jewish-themed parodies of hit songs (pretty much all a cappella groups seem to do a bunch of parodies). Their latest video, for this year's Chanukkah, was a parody of both Billie Eilish's Bad Guy (here: "Pan Fry") and Lil Nas X's "Old Town Road." It's pretty entertaining. Anyway, on Tuesday, they got a takedown notice from YouTube, saying that the video is no longer allowed to be shown for copyright violations:

If you want to see the actual video, it does still appear to be up via Facebook (which, bizarrely, doesn't seem to have an embed option?!)

There's always some risk with parody songs that someone jumps in and claims copyright, and that's possibly what happened here, though there are some oddities in the information YouTube provided to the Maccabeats, as noted in the tweet above. First, it says that the infringing part is from 1:15 to 1:48 in the video, which is roughly the part in which they're parodying "Old Town Road." So, it's probably some sort of Old Town Road claim. But... instead of saying that, it says the date in the part where it shows "Content used." That's weird.

Then, for "copyright owners" it says "Mako." Now, there are some fascinating stories to be told about the copyright for "Old Town Road" including that Trent Reznor actually gets a songwriting credit on it, because it samples 34 Ghosts IV from the Ghosts I-IV album (side note: Ghosts I-IV was part of what inspired my somewhat infamous 2009 Midem presentation, which caused some buzz among the recording industry). However, as far as I can tell, among the various people and companies with a copyright claim to Old Town Road, there is no "Mako."

Oddly, there is an Israeli entertainment company called Mako, which offers video on demand content, and is one of the most visited websites in Israel. Given that, it's possible that the Maccabeats song appeared on Mako, and was then claimed on YouTube because of that.

Either way, the Maccabeats seem quite reasonably pissed off. The song is about Channukkah, and we're about halfway through it this year, so they're on the verge of losing out on the biggest market for their song. Isn't copyright great?

Update: And, it appears that YouTube has decided to put the video back up:

Filed Under: bad buy, billie eilish, copyright, dmca, lil nas x, maccabeats, music, old town road, pan fry, parody, takedown
Companies: youtube

Not The First Rodeo: Lil Nas X And Cardi B Hit With Blurred Lines Style Copyright Complaint Over Rodeo

from the no-more-inspiration dept

We've talked quite a bit lately about how the Blurred Lines decision, saying that having a similar "feel" in a song can be copyright infringement even if it's not a direct copy, has truly messed up the recording industry. Artists are afraid to even mention inspirations for fear of it leading to a lawsuit. New lawsuits are freaking out musicians and even have the RIAA complaining that maybe copyright protection has gone too far.

It appears we've got another such lawsuit, this time against Lil Nas X, who had the undisputed "song of the summer" with "Old Town Road." Lil Nas X released his 7 EP earlier this summer, which included a couple versions of "Old Town Road," but also a collaboration with Cardi B called "Rodeo."

And now they (and everyone else) have been sued over the song claiming that it infringes on a beat called "gwenXdonelee4-142" (catchy name that) that was incorporated into a song you probably haven't heard of: "Broad Day" by PuretoReefa and Sakrite Duexe.

Now, what's important here is that complaint does not claim that Rodeo sampled Broad Day or even that it directly copied the original beat. It literally notes that they just have a "substantially similar" sound.

The similarities between the works at issue include but are not limited to the following: the two works at issue employ a number of substantially similar elements and material which constitute a constellation of elements creating a substantially similar overall sound and feel, as set forth in the below, non-inclusive musical analysis...

It then notes a variety of similarities, including that the chord progression is the same (which, uh, so what?) and that they're both at 142 beats per minute. And then there are things like:

Plaintiffs’ Work utilizes guitar and wind instruments to evoke a certain aesthetic that is set against hip-hop elements derived from digital drum and bass elements....

Rodeo also utilizes guitar and wind instruments to evoke a certain aesthetic that is set against hip-hop elements derived from digital drum and bass elements.

And:

At regular intervals in Plaintiffs’ Work, the rhythmic guitar part outlining chords is replaced with a single note line playing an ascending then descending scale moving with the chord changes....

At regular intervals, Rodeo’s rhythmic guitar part is replaced with a single note line playing ascending and descending scales following the chord progression.

Yes, the songs sound similar. Lots of songs sound similar. That doesn't mean it's infringement, nor should it. But, in a post Blurred Lines reality, that's what we have. Two songs having some similarities are suddenly deemed infringing and the lawsuits start flying. It wouldn't surprise me to find that this case is just settled with the beat creators getting a song-writing credit, because that's often cheaper and faster than going through a whole court case, but the whole thing is pretty messed up and has nothing to do with the true purpose of copyright law.

Again, though, the recording industry only has itself to blame for this situation. It spent decades pushing a maximalist view of copyright, that everything must be owned and that everything must be licensed. Now it's discovering what that means in the real world.

Filed Under: blurred lines, cardi b, copyright, lil nas x, music, rodeo, style