MSCHF One Ups The Onion In Filing Hilarious Supreme Court Amicus Briefs That Educate

Over the last few years, we’ve written a number of stories about a (somewhat silly) trademark dispute between Jack Daniels, makers of whiskey, and VIP Products, makers of doggy chew toys, including one for “Bad Spaniels” that is a pretty clear parody of Jack Daniels.

When we had last mentioned the case it was in 2021, after the Supreme Court refused to grant cert, specifically regarding the question of whether or not the doggy toy was an expressive work, which would subject it to a different level of protection. The case continued, and after another round of back and forth in the courts, the Supreme Court was asked to weigh in again, specifically on the question of whether or not a “humorous use of another’s trademark” is subject to the standard “likelihood of confusion” test, or whether the higher standards of the 1st Amendment apply instead (and, separately, whether or not the humorous use, even for sale, made it noncommercial, which would bar reviewing it for “tarnishment” — an already questionable interpretation of trademark law).

Back in November, the Supreme Court agreed to hear the case, and amicus briefs have been pouring into the docket, mostly from big brand companies and trademark lawyers. So, you have folks like Campbell’s Soup (yes, the same Campbell’s Soup that Andy Warhol parodied) whining about the threats of allowing people to make parodies of brands.

More recently, those in support of VIP Products filed their amicus briefs, and there are some really interesting reads, including from FIRE about how trademark bullying is often used to silence speech, from trademark law professors highlighting how just focusing on “likelihood of confusion” can suppress protected speech, from 1st Amendment lawyers also highlighting how frequently trademark owners stifle speech, from EFF on how courts need to make sure that trademark law doesn’t stifle speech, and from the Authors Alliance and ComicMix (whose own speech has been stifled) speaking directly to the risks of authors having their speech stifled by trademark bullies.

These are all good and useful filings. But… there’s another one as well.

The artist collective/commercial drop pranksters known as MSCHF, who have had their own trademark battles along the way, decided to weigh in as well with… well… something different. You may recall that last fall, The Onion filed a hilarious amicus brief regarding the importance of free speech protections for parody, which, unfortunately, did not convince the Supreme Court to hear that case.

But the MSCHF filing takes this all to a different level. Actually, MSCHF filed its brief the same day as all the other briefs in support of VIP products, but it was initially rejected by the court (for unclear reasons). A corrected version was filed this past Thursday (unfortunately, I no longer have the original version which I had read when it came out. I think the revised version puts more of the legal stuff up front and the, um, nonsense, later).

The corrected full filing starts off with a well argued amicus brief regarding the importance of freedom of expression, and how trademark can interfere with speech. It, like many of the other briefs, highlights how just using the “likelihood of confusion” test can “contradict” the 1st Amendment. But, still, much of the filing is not what you’d expect, starting with the “interest of the amicus” part:

“Crackpots” might be how the Tinker Court would describe us. Far worse, one of the other amicus called us shoe manufacturers. Meanwhile, members of the art world named us “the future.” We call ourselves MSCHF (pronounced “mischief”). We are a collective who critiques and comments on American culture. The renowned Perrotin Art Gallery described our work as “elaborate interventions [that] expose and leverage the absurdity of our cultural, political, and monetary systems.” We start conversations about culture by participating in culture; so we agree with this Court that the freedom of expression is not limited to areas that a benevolent government provides as a safe haven for people like us.

The “crackpot” line, and the closing phrase, are references to the famed Tinker v. Des Moines Supreme Court ruling regarding the 1st Amendment in schools, which included the memorable line “freedom of expression does not exist if it ‘could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots…’.”

The brief highlights just a few of MSCHF’s many commentary projects, and then suggests that the Justices (and their clerks) should begin by “turning to the Appendix.” (Again, I believe that the part that is now the Appendix was initially at the front of their original filing.) The filing also highlights many, many cases of big packaged goods companies appropriating iconography for expressive purposes within their ads, from Starbucks’ use of a medieval mermaid to Coca Cola’s use of Santa Claus.

There’s a lot more, and, again, it’s a really good amicus brief in highlighting tons of real world examples to prove its point. And they really try to prove their point, including showing the results of a (small sample size) survey they ran regarding, um, the taste of Jack Daniel’s Whiskey:

Followed by this bit of commentary:

Our colleagues who expressed an opinion that Jack Daniel’s tastes like anything but the nectar of the gods are, of course, wrong, but this is America and they may express their opinion. Under the likelihood of confusion test, however, it is unclear how far they can go to share that opinion. Could they print their opinion on a pamphlet? What if the opinion is printed on clothing? Could they use Jack Daniel’s filigree to surround their opinion stated on a t-shirt? What if they print that expression on a t-shirt using Jack Daniel’s stylized font? Could they print the expression on a black t-shirt using Jack Daniel’s stylized font and a replica of a Jack Daniel’s bottle? Does it depend on where you live?

There’s so much in the filing, including a fun usage of my favorite XKCD, which I’ll leave you to find.

But then we get to the Appendix, which is what drew so much attention to this filing in the first place. It is a contest, in which they ask each Justice and each of the Justice’s clerks to complete a simple connect-the-dots drawing and send it back to MSCHF to be used in an exhibition.

The show will be composed of 45 works on paper, each taking the form of a Connect-the-Dots drawing, a classic childhood puzzle-drawing format.

Enclosed in this brief are 45 pages, each specifically addressed to one of the people reading this brief. Each page has on its front fact a connect-the-dots drawing waiting for an artist’s hand to make them into completed artworks. On the reverse is a pre-addressed, pre-paid mailing label allowing the completed drawing to be returned to MSCHF for exhibition at no cost to the artist.

In describing the nature of the end result, the filing notes that the Justices and clerks will be part of what “determines what these artworks are” and highlights that each person reading the brief is “the executor of an artwork that makes use of cultural iconography.” But also, to make the point:

Each of these drawings will be displayed as part of a gallery show. Will they be rendered illegal prior to that exhibition?

As you’ve probably guessed by now, the connect-the-dots drawings make use of… some well known trademarks. Here’s the first one, for Chief Justice John Roberts, parodying the Arm & Hammer logo by adding a sickle to it as well:

Robert Flatow, a clerk for Justice Alito, is given a mashup between Mickey Mouse and Shrek:

I do wonder how Clarence Thomas’ clerk, Daniel Shapiro feels about the connect-the-dots he was given:

Spencer Smith, clerk to Justice Sotomayor, was given one that makes reference to Section 230, and appears to be creating a tombstone with the monopoly man’s decapitated head in front of it (I’m not going to comment on that any more…)

Justice Amy Coney Barrett gets a mix of McDonalds and the cross, creating “McMass.”

There are 45 in total, and many of them are fairly amusing, but all basically make the point about the intersection of trademark and artistic expression. I am assuming that none of the recipients, and almost certainly none of the Justices, will actually participate, though MSCHF also filed a separate motion asking for leave to send a pack of colored pencils (importantly, a pack of Crayola® Colored pencils) for the Justices and clerks to use.

The Justices are not exactly well known for their senses of humor, especially around something that may feel like it is mocking the court, but I think the brief does a good job making its point. And I look forward to the MSCHF exhibit.