Vidal, Under Sec. of Comm. v. Elster (22-704)
argument 22-704Vidal, Under Sec. of Comm. v. Elster
Supreme Court of the United States
1h 15m
8 speakers
8 chapters
transcribed 6 days ago
official recording ↗
Transcript
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Transcript generated automatically by AI and may contain errors.
What is the core dispute over the Living Individual Clause in Vidal v. Elster?
We'll hear argument this
morning in case twenty two seven oh four, Vidal versus Elster. Mr Stewart. Thank you, Mr. Chief Justice, and may it please the Court. The Living Individual Clause of 15 U.S.C. 1052C is consistent with the First Amendment. To begin, I would like to emphasize three points. First, Section 1052C imposes a condition on a Federal benefit, not a restriction on speech. Even if Mr. Elster cannot register the mark Trump too small, he can sell shirts with that slogan. He can also obtain the benefits of Federal trademark registration for those shirts by choosing a different source identifier. The Living Individual Clause simply restricts Mr. Elster's ability to assert exclusive rights in another person's name. Second, Section 1052C is viewpoint neutral.
To apply it to any particular trademark, the PTO simply asks whether the mark refers to an identified individual and whether that individual has consented to registration. The agency need not and does not consider whether the mark is flattering, critical, or neutral with respect to the named individual. Mr. Elster's speculation about the circumstances under which identified individuals will or will not consent to registration cannot justify treating the provision as viewpoint discriminatory. Third, the fact that Mr. Elster's mark conveys a message about Donald Trump does not strengthen his constitutional claim. Granting registration here would likely reduce the overall volume of political speech, since Federal
trademark registration provides enhanced mechanisms for the mark owner to restrict the speech of his competitors. The fact that this mark contains political expression is a further reason to hesitate before making those mechanisms available. I welcome the Court's questions.
Uh Mr Stewart, if we agree with you, uh how would that affect copyright law?
I think we would say that both trademark registration and copyright registration are federal benefits, but it wouldn't have to follow that exactly the same rules that would apply in one context would need to apply in the other. Clearly that's true as a statutory matter. There are both Federal trademark and copyright registration require uh programs, but the statutory requirements are very different. And the same thing could be true of the Constitution. Institution. And I draw an analogy to, a rough analogy, to the Court's traditional public forum jurisprudence. That is, even on locations like streets and parks, the ability to use government property for private communication is a kind of government benefit.
But the Court has recognized that with respect to some types of government property, the tradition of making those fora available is so strong, so deeply rooted, that the government needs to show a good reason before it limits expression on a content basis. And the Court could reach the same conclusion with respect to copyright. The Court has described copyright as the engine of free expression. Its whole purpose is to promote incentives for creative expressive in endeavours. Trademark has A very different purpose. And to point to one instance in which, though, in which it is important to recognize that copyright registration is a government benefit, one of the requirements you have to satisfy in order to register your copyright is you need to pay a fee to the copyright office.
And obviously that would raise huge First Amendment problems if it was a condition on engaging in the speech. The reason we don't think of it as problematic in the copyright registration program is that it is not a condition on the speech, it is a condition on the benefits that go with Federal copyright registration. So the analysis would have to take into account the fact that it is a benefit program, but if the question is, can Congress exclude certain types of creative works from copyright protection based on their content, that would be an entirely different question. That would be something that really has no historical analog and the court in conducting the First Amendment analysis could take into account constitutional purpose, history and tradition.
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Chapters
8 chapters
1
What is the core dispute over the Living Individual Clause in Vidal v. Elster?
0:00–10:07
2
How does Stewart structure his three‑point argument about Section 1052C?
10:07–19:46
3
Why does Stewart claim the Living Individual Clause is viewpoint‑neutral?
19:46–30:08
4
What role do government‑benefit analysis and the First Amendment play in this case?
30:08–40:22
5
How do historical trademark practices and the Jack Daniels decision inform the debate?
40:22–49:20
6
What are the arguments for applying rational‑basis versus heightened scrutiny?
49:20–58:20
7
How would the ruling affect hypothetical trademark and copyright scenarios?
58:20–1:06:51
8
What conclusions and final questions does the Court pose to the parties?
1:06:51–1:15:47