EFF Defends Anti-War Group Against SXSW’s Bullshit IP Claims
We haven't talked a great deal about SXSW in some time, but they are back in the news and not for good reasons! The conference and festival kicked off in March as planned, but less planned were the protests that organized against the conference as a result of its affiliations with defense contractors and the United States military and the ongoing support of Israel's heavy-handed response to the attacks it suffered from Hamas last year. Performers backed out and a handful of protest groups organized alternative concerts and demonstrations out in front of SXSW.
One of those groups was the Austin for Palestine Coalition (APC) that put out communication and organized protests along these lines. In those communications, some of them included parodied versions of the SXSW branding to make it clear that the group believes the organization has blood on its hands. For instance:
Now, for the sin of publishing this parody content, which you will already recognize as protected speech under the First Amendment, SXSW made several trademark and copyright claims for takedowns of social media and internet content. To be clear, those claims are utter nonsense.
And if you want to understand the specifics as to why, the EFF has gotten involved in supporting AFC and has a great explainer in the link.
On the trademark question first:
The law is clear on this point. The First Amendment protects your right to make a political statement using trademark parodies, whether or not the trademark owner likes it. That's why trademark law applies a different standard (the Rogerstest") to infringement claims involving expressive works.TheRogerstest is a crucial defense against takedowns like these, and it clearly applies here. Even withoutRogers' extra protections, SXSW's trademark claim would be bogus: Trademark law is about preventing consumer confusion, and no reasonable consumer would see Austin for Palestine's posts and infer they were created or endorsed by SXSW.
Completely correct. APC is protected when it comes to this content via several vectors. Parody is protected speech. Political messaging is protected speech. And, finally, trademark law struggles to be employed when there is no serious concern for confusion in the public. And if SXSW really wants to make the argument that someone is going to take messaging critical of it as affiliated with SXSW, I'm happy to sit back and laugh at them.
As for the copyright claim, it's even worse.
SXSW's copyright claims are just as groundless. Basic symbols like their arrow logo are not copyrightable. Moreover, even if SXSW meant to challenge Austin for Palestine's mimicking of their promotional material-and it's questionable whether that is copyrightable as well-the posts are a clear example of non-infringing fair use. In a fair use analysis, courts conduct a four-part analysis, and each of those four factors here either favors Austin for Palestine or is at worst neutral. Most importantly, it's clear that the critical message conveyed by Austin for Palestine's use is entirely different from the original purpose of these marketing materials, and the only injury to SXSW is reputational-which is not a cognizable copyright injury.
As far as the EFF has heard, SXSW hasn't responded to its pushback. And, of course, guess what all of this bullying type behavior designed to bury the protests has actually done? Well, in true Streisand Effect fashion, the very information this bullying was supposed to tamp down is instead on a repeater as more and more outlets, including us, discuss the story in its entirety.
When will they ever learn?