All Rights Reversed
Illustration by Ayo Arogunmati
Nobody knows for sure who took the first jump shot–a method of shooting a basketball that involves a player jumping up with the ball in hand above the head, elbows locked and launching the ball, which travels in an arc shape fashion towards the rim. On one account, according to the NCAA archives, John Miller Cooper, who played at the University of Missouri, is the first person to take the jump shot. Another account says Ken Sailors completed the first jump shot in May 1934. The origin of the jump shot is not clear, but historical patent filing shows that the jump shot’s motion and process were patented, earning the patent owner millions over the next 20 years. Taking it one step further, a commentator, during the 1940s, trademarked the term jump shot. Each year and forever, the commentator will earn hundreds of millions in royalties for the use of the term in a commercial capacity.
If you read with a critical eye, you can tell that the history of the jump shot described above is not all true. Nobody filed a patent nor a trademark for the jump shot. Without these legal roadblocks, the next 80 years would grant the public the chance to witness other basketball players improve on the jump shot. Not only the players such as Reggie Miller, Steve Nash, Steve Kerr, and Steph Curry have benefited from the ability to shoot a jump shot, but also the broadcasting network and the National Basketball Association have gained from the term jump shot and the shooting process.
Upon hearing that LeBron James attempted to trademark the term Taco Tuesday, there was no surprise given his corporation, which carries on business under the name LBJ Trademarks LLC. If you have to think hard about how two independent terms, one associated with several nation-states, and the other a day of the week, can be trademarked then it means the terms belong to the public and should not move into the private domain. While there is some creativity involved in combining two terms that seem unrelated in most capacities, the attempt to trademark Taco Tuesday was pointless because another company in the business of selling food trademarked the term long before.
Based on the filing, LBJ Trademarks LLC would use the term Taco Tuesday to create things including: downloadable audio/visual works, podcasts, social media, online marketing, and entertainment services. After losing the right to file the trademark, the counsel expressed that they did the filing to make the term available in the public domain to mitigate any potential claims against LeBron for using the term. While there is truth regarding freeloaders targeting celebrities and their wealth, counsel is spinning this story in a favorable light. It is unlikely that the use of the term would be available to the public for commercial purposes if the trademark office granted LBJ Trademarks LLC the right to use the phrase.
LeBron is not the only one guilty of taking these forms of legal action to move ideas from the public into the private market. So here are a few examples for your reading pleasure.
Pat Riley–trademarked the term “Three-Peat” - a term used when a team wins 3 championships in a row.
Anthony Davis—trademarked the phrase “Fear the Brow”.
Michael Buffer—trademarked the phrase “Let’s Get Ready to Rumble” and has earned $400 million to date.
KFC—trademarked “Toonie Tuesdays”.
Rohit Walia–trademarked “Three-Heat”, hoping to capture the value from a LeBron led Miami Heat team, but the team only won two championships.
The footer of most websites including this one has the phrase All Rights Reserved. But what does the All mean? What happens if someone breaks one of the rules of the copyright, but makes better work that enhances the original? Do All Rights Reserved still apply? What is the goal of putting your work in the public arena and earning from it for your whole life because of a trademark?
The argument is not for the termination of all trademarks, but for certain forms of intellectual property to transition to the public domain after the original creator has benefited from the economics of the right. We should exclude a company such as Nike from this argument given that its primary business is designing and manufacturing shoes and it is unlikely that the public can design and manufacture better than Nike. Nike shoes are not made better just because the trademark is available in the public domain. But there are other environments or industries whereby participants promote the sharing of intellectual property, for example, Tesla.
The concern with intellectual property protected forever is that the product or service these rights protect do not always get cheaper and better. It is better for the public to take these ideas, develop them further, find new ways to manipulate and create things that are cheaper and better for the public.
Creators that own these intellectual property rights will argue against the suggestion that ideas should transition to the public domain after some period of time and should not remain in the private domain forever. However, artists would be agreeable with the transition to the public domain if the artists can ensure that their work does not fade into obscurity. Artists want to get paid for their art and that is a fair tradeoff if the work is transitioned to the public domain.
Several organizations have developed methods to address protections on intellectual property. For example, Creative Commons provides a database of creative works that can be used with Some Rights Reserved. Creators communicate which rights they reserve and which rights they waive for the benefit of other creators to use. There is also the Copyleft initiative, offering creators the right to freely distribute copies and modified versions of a work, but the use is subject to the requirement that any subsequent work created from the original must also have the same rights as provided by the original work. These less stringent rules for the use of intellectual property eliminates the administrative and legal burden of clearing copyright. Although these initiatives remove the vast economic benefits that could come from having copyright, the benefit to artists from open-source is the recognition by peers and other creators who use their art to create better art.
These open-source initiatives are not without opposition. Late last year, there were discussions in the European Parliament on a new Copyright Directive. The first was to start a (1) Link Tax, which bans linking to a news site unless the service you are using has a license with all the “news sites” you might link to. The second directive (2) Censorship Machines was for online services to check everything a user wishes to publish against a database of “copyrighted works”. From these two directives, what we see is a plan to kill the free web and the ability to learn, develop, and create better art.
The internet is an open space for all ideas with the sharing of information as the primary goal of the early creators. The more legalese and monopolization of intellectual property leads to the creation of trademark corporations not in the business of creating anything new, but only created to capture monopoly profits by prohibiting others from ideas that should be in the public domain.
NOTES
[1] The fact that the first person who took the jump shot cannot be definitively identified is probably an indication that the action is not unique to one particular person. The first person may have not been featured on a nationally televised broadcast, so it makes sense that there was no patent against this form of shooting a basketball
[2] Pat Riley still has the trademark on the word three-peat. Not that everyone who utters the word has to pay him but he does have exclusive commercial use of the term “three-peat” (https://www.snopes.com/fact-check/three-peat/)
[3] Creative Commons and Copyleft Directives, I believe, might be the best way for the public to accelerate the process of creating better and cheaper work. As more people join in on the open-source, things get resolved faster and new ideas get presented to enhance the previous version. Eric Reis discusses this in his book called The Cathedral and the Bazaar with respect to open-source software. Creative Commons (https://en.wikipedia.org/wiki/Creative_Commons); Copyleft: (https://en.wikipedia.org/wiki/Copyleft)
[4]The two European directives are discussed in more detail at (https://boingboing.net/2018/09/05/saveyourinternet-eu.html)
[5] I am still confused as to what rights are actually reserved at 36 States. Of course if you take the images or words without attribution, I will have an issue, but a simple attribution to the source is sufficient.
[6] Lebron trademark process is discussed further at (https://www.nytimes.com/2019/09/11/style/lebron-taco-tuesday-trademark.html)
[7] Tuesdays are special days in North America. In Toronto, Tuesdays were known as Toonie Tuesdays at Kentucky Fried Chicken, as it was known 15 years ago, now called KFC. The term Toonie Tuesday was certainly trademarked by KFC as no other franchise used the term to get customers to buy their food on a Tuesday. Rather, the weekday special was initiated by other franchises in competition with KFC. Come in on Monday, grab a whopper or maybe on Tuesday and get a Big Mac Xtra. The choice is yours. However, because these companies are engaged in true commerce, there should be limited criticism of these companies. They think of the product; they make the product; They sell the product and they make money from the product. The question is how long should this benefit accrue to the owners of the business.
