I hereby interrupt my own Donald Trump – Stormy Daniels legal analysis to bring commentary to an inter-sport legal drama that erupted this week between two of the titans in their respective sports, NBA mega-star, LeBron James, and University of Alabama head football coach, Nick Saban. The dispute centers on each’s internet video series which are both set in a barbershop. A Lebron James-affiliated company, Uninterrupted, has produced and released a series of web videos entitled “The Shop” in which current and former NBA stars engage in conversations while getting their hair cut. Recently, Alabama previewed an upcoming episode of what appears to be a forthcoming web-video series, also set in a barbershop, to be entitled, “Shop Talk,” featuring former Alabama football stand-out Julio Jones.
This week, Uninterrupted sent a letter to Alabama expressing concerns that Shop Talk infringes on Uninterrupted’s copyrights, trademark, and other intellectual property rights. I have not been able to find a copy of the letter posted on the internet yet, but media reports characterize it as I have here – as expressing “concerns.” Also, one report says the letter invites a discussion before “rushing into legal proceedings.”
What to make of this?
With the caveat that I have not seen Uninterrupted’s letter, the characterizations in the press suggest it was not a firm and strong cease-and-desist letter. This could mean a couple of things. One is that Uninterrupted doesn’t have a lot of faith in the legal position it is taking. When operating from a position of strength in intellectual property matters, one typically does not request a meeting, but rather demands that the offending conduct stop immediately. Hand-in-glove is the second possibility, which is that this is more about publicity and promoting The Shop than actually stopping production of Alabama’s Shop Talk.
Does Uninterrupted have a point here? As far as copyright infringement is concerned, I certainly don’t think so. The claim seems to be that the set up of the two shows are very similar. But, simply asked: so what? You know what other shows feature basically the same set up? Late night talk shows. Day time talk shows. Newscasts. I could go on. Uninterrupted’s idea to put athletes in barbershops to have discussions isn’t even an original one. That set up was used in an Aflac commercial starring Yogi Berra in the early 2000’s.
In fact, if you think back, there are no shortage of examples of television shows or movies that start from the same basic premise. The 1987 movie, Like Father Like Son, shared the same set up as the 1988 film, Vice Versa: parents and children switching bodies and living life in each other’s shoes to gain an appreciation for each other’s perspective. In 1989 the movies, Leviathan and The Abyss both centered on (fictional) deep-sea underwater drilling / mining operations, lost submarines, harsh weather conditions at the surface of the ocean that function to keep the protagonists underwater and cut off from help. About a decade later, in 1998, the movies, Armageddon and Deep Impact came out, each being set against the backdrop of an asteroid (or comet) on a collision course with the earth and prominently featuring father-daughter relationships between main characters.
The reason why movies and shows with similar elements or set ups can exist as they have is due to the reach of the Copyright Act of 1976. Section 102 of the act makes clear that copyright protection is granted to “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. 102(a) The Copyright Act further clarifies that “[i]n no case does copyright protection for an original work of authorship extend to any idea … [or] … concept, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. 102(b). Put simply, Uninterrupted could not have a copyright on the concept of athletes taking at the barbershop. That simply is not copyrightable.
Uninterrupted’s trademark complaint presents a closer call, but this would only apply to the names of the shows. Trademark protection does not protect the content of the shows – that is the role of copyright law – but rather, it protects the “name” or “mark” of the goods or services being sold that identify the source of the product. The key to a trademark violation is that there is actual or potential confusion in the minds of consumers as to the source of the products in question. This is analyzed by means of a multi-factor test that looks at, among other things, how strong the marks are in terms of identifying the source of the product, how similar they are, how close are the markets and marketing channels the goods sold under the respective marks, and the sophistication of the consumers, as well as any evidence of actual consumer confusion.
As with any analysis in which multiple factors are involved, it is hard to find any hard and fast rules. But again, turning to what we see all around us, we can at least conclude that the similarity of the marks, standing alone, is not enough. After all, we live in a world where Delta Airlines, Delta Faucets, and Delta Dental can co-exist without consumer confusion about whether the same company is the source of all three brands’ goods or services. One step removed, you have Lexus automobiles, and Lexis/Nexis, the provider of online legal research services. I’ve yet to hear of a lawyer walking into a Lexus dealership, surveying the beautiful new cars, and asking if they could expand their subscription to include the American Jurisprudence database.
The reason I think a trademark issue is a closer call stems in part from the fact that the copyright claim is so obviously weak. I think the marks, “The Shop” and “Shop Talk” are somewhat similar, though far from identical. They are both marks for web video series set in barbershops, featuring athletes, and directed toward sports fans. However, Shop Talk is directed to a specific segment of sports fans (Alabama Fans) who will be highly sophisticated in knowing that Shop Talk is a product of the University of Alabama. In the final analysis, I think a trademark claim would be plausible, but not strong overall. Were I a betting man, I would bet on LeBron James to win at any number of things. A trademark infringement claim on these facts is not one of them.
And this may explain the modest approach of the letter sent to the University of Alabama. Uninterrupted’s goal may be to simply have some sort of differentiator put on the title of Alabama’s show – something like “Alabama Shop Talk,” or “Shop Talk with Coach Saban.” And perhaps recognizing the public relations opportunity presented by this tempest-in-a-teapot intellectual property dispute, Alabama may oblige – publicly and vociferously. I would be a little surprised if this controversy ever sees the inside of a courtroom.