Intellectual Property Law – Page 4 – Marquette University Law School Faculty Blog

The Challenges Facing Podcast Hosts Protecting Trademarks

Post author:Monica Reida
Post published:September 4, 2020
Post category:Intellectual Property Law Legal Scholarship Popular Culture & Law Public Student Contributor

Among 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.

Marquette Student Paper Featured on Ipse Dixit Podcast

Post author:Bruce E. Boyden
Post published:September 4, 2020
Post category:Intellectual Property Law Legal Scholarship Popular Culture & Law Public Student Contributor

Former student guest blogger and current 2L Monica Reida recently appeared on Ipse Dixit, a podcast on legal scholarship that has a wide audience among law professors, to discuss their fascinating new paper, You Must Roll 18 or Higher for Your Claims to Succeed: Common Law Trademarks, Unauthorized Merchandise, and the Podcast “The Adventure Zone”. You can listen to the podcast episode here. Monica is returning to the Faculty Blog for a couple of posts about the paper, which is available now on SSRN. Congratulations Monica!

The Legal Process Sea-Change

Post author:Bruce E. Boyden
Post published:April 17, 2018
Post category:Intellectual Property Law Judges & Judicial Process Legal History Public

There’s an old joke about scientific progress: that science advances one funeral at a time. The same might be said about judicial philosophies. Some judges might be persuaded to change their views over time, but it is just as likely, if not more, that change occurs through a changing of the guard. So it was with the Second Circuit in the 1960s. The Second Circuit had had a remarkably stable bench during the 1940s, when Learned Hand was the chief judge. Four of them, Hand, Hand’s cousin Augustus, Harrie Chase, and Thomas Swan served together in active or senior status for twenty-five years, from 1929 to 1954. The remaining two, Charles Clark and Jerome Frank, were with them from 1940 on.

But within six years in the 1950s, the active bench of the Second Circuit experienced nearly a complete turnover, except for Clark. The new judges, who included Henry Friendly, J. Edward Lumbard, Irving Kaufman, and Thurgood Marshall, obviously had different educational and professional experiences from those of the judges they replaced. What truly distinguished the new group, however, is that they had a very different approach to judicial decisionmaking, and in particular the proper role of discretion. No longer were the Second Circuit judges comfortable with leaving important substantive decisions on the merits of a claim to case-by-case equitable balancing. In the 1960s, the Second Circuit began crafting multi-part tests to replace the vague standards that had come before, to force lower courts and later panels to elaborate the reasons for their decisions. Whether they consciously subscribed to it or not, the new judges were heavily influenced by Legal Process ideology.