Art Law

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Session Type: Section Programs

Session Capacity: N/A

Location: Hilton New Orleans Riverside

Room: Commerce

Floor: Third Floor

Many forms of art incorporate trademarks in various ways that have long been considered protected from trademark infringement claims for free-speech-like reasons. Recently, some uses of trademarks in art have raised controversies such as when a character in HBO's "The White Lotus" wore a branded Duke t-shirt while engaging in all sorts of behavior to which the school objected. At the same time, the Supreme Court's Jack Daniel's case about a "Bad Spaniels"-themed dog squeaky toy questioned and limited the scope of the leading Rogers test that had been applied to generally permit uses of trademarks in artistic expression. Beyond the majority opinion, a number of justices suggested that they are skeptical of the Rogers test altogether. What do these developments mean for artistic freedom and the ability of artists ranging from visual art to film and performance to digital media to use trademarks as part of their creative expression? Is there an alternative test to Rogers that might better balance artistic freedom with trademark protection?