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Supreme Court responds to Matal v. Tam, regarding “The Slants”

In 2011 a young musician and polymath, Simon Tam, got a suggestion from a lawyer friend. Simon’s band, “The Slants,” was blowing up quite a bit, and the lawyer friend was pointing out that they had not trademarked their name. The lawyer said that it shouldn’t be a big deal, a couple of hundred dollars and some paperwork.

Mr. Tam was pretty busy, but since the lawyer said he could take care of it Tam said to go for it. They had already been using the name for a while; in fact, their album “Slants! Slants! Revolution” in 2009 had taken for granted that the ironic use of the slur, based on the imagined shape of Asian eyes, was something they could own and take back. (I should note that, if you are older than 40 or younger than about 25, there was this thing called “Dance! Dance! Revolution” in arcades…oh, never mind.)

The group wasn’t really worried much about their trademark application; it all seemed pro forma. But one day (according to the version told here:  Meredith Bragg (Interviewer), “The Slants: The Band Who Must Not Be Named,” Reason, April, 2017, http://reason.com/archives/2017/03/11/the-slants-the-band-who-must-n ) the lawyer friend called and said they had a problem. “They said your [band] is disparaging to persons of Asian descent….[meaning that] a substantial composite of the reference group has to find it disparaging.”  The reference given by the trademark office was that great legal authority Wikipedia, and a photo of Miley Cyrus pulling her eyebrows back and sticking her teeth out.

That was it. The trademark Nazis said, “No trademark for you!” To be fair, I can understand being offended by Miley Cyrus, but that’s hardly a problem for Mr. Tam’s band.  And offensive, “let’s own this!” band names have a long tradition in rock. Right off the top of your head, you can think of Courtney Love’s band, “Hole” (it was all women; OMG!); the “Butthole Surfers” (I don’t know if that’s offensive to surfers, but they still have a MySpace page, and that should offend anyone); and “The Dicks.” You might think that “The Dicks” would go on tour with “Hole,” but The Dicks did an album called “Dicks Live!  Hungry Butt,” so they might not really be on that team.

Yes, that was a really offensive paragraph. Rock music, punk music, hip hop if it’s real, all of it should be pretty upsetting and offensive. (I imagine that by this point my good friend Jacob Levy is clutching at his pearls and fanning himself with a copy of Spirit of Laws, muttering, “Wah, wah, ah NEVah!”)

Well, Mr. Tam and the other Slants went to court. They managed to take the issue all the way to the Supreme Court.  The case was heard in January.  And it was decided on Monday.

And the Court was quite properly offended by the decision of the trademark office.  Here’s the decision (http://www.npr.org/sections/thetwo-way/2017/06/19/533514196/the-slants-win-supreme-court-battle-over-bands-name-in-trademark-dispute ), and here is Damon Root with some commentary. [ Damon Root, “In Major Free Speech Victory, SCOTUS Rules for ‘The Slants’ and Strikes Down Federal Trademark Restriction,” Reason, Jun. 19, 2017 11:18 am, http://reason.com/blog/2017/06/19/in-major-free-speech-victory-scotus-rule ]

Now why doesn’t somebody do something about Miley Cyrus?

  • Anomaly

    There aren’t many good arguments for tenure. But the fact that it allows you to write a blog post like this comes close.

    FWIW: the Butthole Surfers, like The Beach Boys, never actually surfed. If anyone should be denied a trademark for their name, it’s these bands, not the slants!

    • Being a “butthole surfer” has nothing to do with water. The Butthole Surfers is a good comparison to The Slants for a different reason.

      • Anomaly

        Yeah, I know. I was just disappointed as a kid in Southern Cal when I bought one of their albums and it failed to live up to my elevated taste in music: Circle Jerks, Dead Kennedys, Minor Threat…

        This is a complaint and a confession more than an argument.

        • A. Alexander Minsky

          I was a big fan of the Dead Kennedys and the Circle Jerks back in the 80’s (Minor Threat, not so much). Nonetheless, your post is the first time I haave heard the music produced by those bands described as “elevated”.

  • Peter from Oz

    I understand that the provsions struck down by the Court have been in place for a long time. One must ask what is so hard about the First Amendment requirement that the government makes no law abrogating free speech?

  • There used to be a band called ‘Niggers With Attitude’ too. They were black.

    • Well, it was NWA. Spelling out the name is not something one should do, on a family blog. But that is quite different from having a LAW against it, I’ll admit.

      • A. Alexander Minsky

        I was always a bit surprised they got away with using that name, since the National Wrestling Alliance had been employing the same acronym since, at least the 1950’s.

        • Sean II

          Also that NWA has fair claim to being first inventor of the diss track.

          Long before Ice Cube had even heard of vaseline, those guys were publicly insulting each other to stimulate ticket sales.

    • Sean II

      Should be “az” on the end there.

      But I was always partial to their unjustly neglected rival, N.W.H.

      • I’m afraid that you have baffled me, Sean.

        • Sean II

          Have you seen This is Spinal Tap?

          Well, back in the early 90s there was a rap version called Fear of a Black Planet, with a fictitious band called “N____az With Hats”.

          Though hardly a masterpiece, it was a pretty fair takedown of the way early hip-hop sold out its social and political focus (such as it was) in favor of the crude materialism, misogyny, and machismo that defined the genre ever since…or at least until Drake came along.

    • That was the first thing that came to my mind as I read this post, too.

  • CJColucci

    Right result, but a lot of straw-manning of arguments nobody made.