The Challenges Facing Podcast Hosts Protecting Trademarks

Posted on Categories Intellectual Property Law, Legal Scholarship, Popular Culture & Law, Public, Student Contributor

Cover of Adventure Zone graphic novelAmong the many technological changes in the 2010s was the rise of podcasts as a form of entertainment. Average people were able to purchase microphones and record conversations with their friends, family, or experts in a field, and then upload for people across the world to listen to.

Three brothers, Justin, Travis, and Griffin McElroy started recording the comedy-advice podcast “My Brother, My Brother, and Me” in 2010. After that podcast’s success, they went on to record several other podcasts, including “The Adventure Zone,” in which they play tabletop role-playing games with their father, Clint. This podcast has been done in three main storylines: “Balance,” “Amnesty,” and “Graduation.”

“The Adventure Zone” appears to be the most popular podcast released by the McElroys. Thousands of fans follow subreddits and Facebook pages and groups. “The Adventure Zone” has been adapted into a best-selling graphic novel, licensed for a tabletop role-playing game, and is currently being adapted for a possible animated show for the streaming platform Peacock.

With this fame has come devoted fans, some of whom make fan art and then sell it. This practice is largely disapproved by the McElroys, although they have not taken any legal action against creators of unauthorized merchandise. Justin McElroy has implied on Twitter that he is okay with people commissioning artists to draw characters from “The Adventure Zone.” This detail is lost by the fans, who treat all fan-creations for sale as bad. While the McElroys have created a podcast, which they appear to make money from, and they have a right to protect their creation from people seek to unscrupulously profit from it, there are challenges facing them, as well as other podcast hosts.

This is the focus of my paper You Must Roll 18 or Higher in Order for Your Claims to Succeed: Common Law Trademarks, Unauthorized Merchandise, and the Podcast “The Adventure Zone,” about which I was interviewed on the podcast “Ipse Dixit” by Prof. Brian L. Frye of University of Kentucky College of Law. Although I am not a fan of the McElroys’ podcasts, they are among the many podcast hosts trying to navigate a variety of legal issues coming with their success or how they try to harness their fame. It was their stance on fans selling artwork and unauthorized merchandise, which seems to be abnormal compared to other podcast hosts, that drew me to writing about them.

I applied trademark law in my paper as these are items being sold that are competing with merchandise from the McElroys’ official merchandise store. It presently appears there are also no registered trademarks for any of the McElroys’ podcasts, which meant I examined all of these marks through common law.

I first examined whether characters on the podcast could be protected through trademark law. Historically, characters that can be readily identifiable by audiences, such as Batman and James Bond, have been held by courts to be protectable marks. A character that is “arbitrary and fanciful” because of its depiction can also be a protectable mark, which would initially seem to apply to the McElroys, as their characters exist in fantasy settings.

The McElroys have what appears to be an “official” way to depict the characters through the artwork created by Carey Pietsch for the graphic novels. Artists’ interpretations of Pietsch’s artwork have then been used by the McElroys on posters for their live shows, which seems to be a mark being used in commerce. From any approach, it would seem these depictions of the characters, or other ways the McElroys have clearly described the characters – one character is described as looking like the actor Brian Blessed – would possibly make them protectable.

The problem is the McElroys have officially said there is no correct way to depict their characters. While this may have been said to avoid fighting in the fandom over how to depict characters in artwork, this causes their characters to lose any way of being clearly defined for someone to recognize the characters without something to also suggest they are tied to “The Adventure Zone.” It presently appears there is not a lot the McElroys can do in the way of protecting their characters in the context of being used as marks.

Another option is to protect other elements that appear regularly in the podcast. Through a variety of cases, including three I examine in my paper, multiple courts have held that if an element regularly appears, which can be interpreted to mean “appears in several episodes, which then live on through syndication,” and it is used as a mark to signify it comes from the owner of the mark, it can be protected.

The McElroys do use elements of their podcast as marks, but only some of them should be granted protection. With the “Balance” series, there are elements that have been used as marks and even appear in the licensed game for “The Adventure Zone,” but are either too generic or do not appear enough in the series. Other elements that have been used as marks, such as settings and businesses in “Amnesty” and “Graduation,” are more likely to succeed in being deemed as protected.

The other issue arising here is who is infringing on the McElroys’ marks. I argue fans who create unique pieces, such as artwork or pins and patches, have brought something new into the world that is inspired by the podcast. They are merely using this as a forum to share their love of the podcast with other fans and may want compensation for what they have created. It is unlikely these fans are intentionally, maliciously seeking to cut into the McElroys’ revenue stream. This differs from fans who hastily throw together a design in Photoshop and upload it to a site to be printed on demand. That seems to be done to take advantage of the enthusiasm fans have for the McElroys’ creation, which should be scrutinized by the courts if they have infringed on any of the McElroys’ trademarks.

The McElroys are likely not alone in wanting others to not profit off their creation, although they may be among the more high-profile podcast hosts to explicitly say they are opposed to this. This is one of the many legal issues podcast hosts must navigate in the booming podcast industry, particularly as some try to catapult to fame through the audio medium.

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