Trademark, First Amendment, Constitution, Movie, Television, Ginger Rogers, Fred Astaire, Ballers, Concussion, Batman, Superman, Ghostbusters, Right of Publicity, Fair Use, Artist, Artistic Relevance, Misleading, Dallas, Kanye West, Hangover, Circuit Split, Bully, Pitbull, Grand Theft Auto, Video Game, The Rock, Oliver Stone, Barbie, Sony, Virag, Fox, Empire, Warner Bros.


Movies, television programs, and video games often exploit trademarks within their content. In particular, various media often attempt to use the logos of professional sports teams within artistic works. Courts have utilized different methods to balance the constitutional protections of the First Amendment with the property interests granted to the owner of a trademark. This Note discusses these methods, which include the alternative avenues approach, the likelihood of confusion test, and the right of publicity analysis. Ultimately, many courts utilize the framework presented in the seminal Rogers v. Grimaldi decision. This test analyzes the artistic relevance of the trademark’s use in the allegedly infringing work, while also protecting against explicitly misleading uses. Currently, federal circuits apply the Rogers test inconsistently, particularly in the Second, Sixth, Seventh, and Ninth Circuits. This Note calls for a consistent method to harmonize First Amendment protections with trademark property interests through the Rogers test. This Note proposes that the threshold for First Amendment protections should remain relatively low for culturally relevant marks. This Note also argues that courts should analyze a First Amendment defense before engaging in a likelihood of confusion inquiry. This Note’s suggested approach would implement important safeguards to avoid lengthy trademark litigation, and thus, incentivize more artistic works by lowering transaction costs.