Lee v. Tam (15-1293)
argument 15-1293Lee v. Tam
Supreme Court of the United States
56 min
5 speakers
8 chapters
transcribed 5 days ago
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What is the central legal issue in Lee v. Tam and how does the Court frame the disparagement provision?
We'll hear argument
first this morning in case fifteen twelve ninety three, Lee versus Tam. Mr Stewart? Thank you, Mr. Chief Justice, and may it please the Court. The statutory provision at issue in this case, 15 U.S.C. 1052A, prohibits the registration of any mark that may disparage persons, institutions, beliefs, or national symbols. Based on that provision, the PTO denied respondents' application to register the slants as a service mark for his band. The PTO's ruling did not limit respondents' ability to use the mark in commerce. commerce or otherwise to engage in expression or debate on any subject he wishes. Because Section fifty two A's disparagement provision places a reasonable limit on access to a government program rather than a restriction on speech, it does not violate the First Amendment.
Is copyright a uh a
copyright a government program? I think we would say copyright and copyright registration is a government program, but it's historically been much more tied to First Amendment values, to the incentivization of free expression. But
in part that seems to me to ignore the fact that uh we have a culture in which we have T shirts and logos and rock bands and so forth that uh are expressing a a point of view. They're using uh the the m the market to express views. I mean certainly it's uh because I was the disparagement clearly wouldn't work with copyright and and and but that's a powerful, important government program.
Let me say two or three things about that. First, there's no question that through their music the slants are expressing views on social and political issues. They have a First Amendment right to do that. They're able to copyright their songs and get intellectual property protection that way. If Congress attempted to prohibit them either from having copyright protection or copyright registration on their music, that would pose a much more substantial First Amendment issue. But For more
substantial First Amendment issue, I I was somewhat surprised that in your brief you couldn't bring yourself to say that uh the government could not deny copyright protection to uh objectionable material. Are you willing to say that?
I will I I I hate to give away any hypothetical statute without hearing the justification, but I'll come as close as I possibly can to saying, yes, we would give that away. It would be unconstitutional to deny copyright protection on that ground. But I would also say, even in the copyright context, we would distinguish between limits on copyright protection and restrictions on speech. For instance, it's historically been the case and it remains the Position of the Copyright Office that a person can't copyright new words or short phrases. Even if a person comes up with something that is original, that is pithy, that makes a point. If it's too short, you can't get copyright protection. We would certainly defend the constitutionality of that traditional limit on the scope of copyrightable material.
And if there were a First Amendment challenge brought, we would argue that there's a fundamental distinction. between saying you can't copyright a f four-word phrase and saying you can't say the four-word phrase or you can't write it in print. But
there's a there's a s significant difference between Yeah, the cop the copyright regime You can't sue for copyright infringement unless you register. Isn't that so?
You have to have filed an application to register in order to to pursue an infringement suit. And so the the statute, I believe it's seventeen USC four eleven A, indicates that if you filed a an application to register your copyright, even if that application has been denied, you can still bring your copyright suit and the the register is entitled to be heard on questions of copyrightability.
There's no comparable restriction on the
That's correct. You can file a suit under Section eleven twenty five A of Title fifteen under under the trademark laws, either for infringement of an unregistered trademark or for unfair competition more generally. I am concerned that your
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Chapters
8 chapters
1
What is the central legal issue in Lee v. Tam and how does the Court frame the disparagement provision?
0:00–7:11
2
How do the parties compare trademark registration to copyright registration and argue about government programs?
7:11–14:16
3
Why do the respondents claim that the disparagement clause burdens only non‑commercial speech, not trademark function?
14:16–22:27
4
What is the government’s purpose for trademark law and how does it differ from pure expressive speech?
22:27–29:28
5
Is the disparagement restriction a form of viewpoint discrimination under the First Amendment?
29:28–36:06
6
How does the “public park” analogy illustrate the limits of trademark regulation?
36:06–42:20
7
What distinctions between commercial and non‑commercial aspects of a mark are acceptable under the Lanham Act?
42:20–49:25
8
What conclusions do the Justices draw about the balance between trademark registration benefits and free speech rights?
49:25–56:26