Football, Intellectual Property, Sports

Who Dat Sey Dey Own Dat Chant?

Who Dat chips.JPGBack when I used to practice law, I had the opportunity to do some low-level IP work for the National Football League. As Biglaw work goes, it was pretty fun. And I remember the staff lawyers at the NFL as a very nice and engaging group of men and women.
But sometimes, the IP gurus at the NFL really know how to act like an immense turd in a punch (super) bowl. Remember when the NFL cracked down on the “unlicensed” use of the term Super Bowl? Then there’s the NFL’s ongoing ridiculousness with American Needle. For the overlords of a sport that claims to be “America’s passion,” the NFL has a curious way of crushing the life out of anything that could even slightly siphon a dollar away from their clever system of unlimited revenue potential and fixed labor costs.
But the latest example of the NFL blitzing small entrepreneurs is arguably more ridiculous than everything that has come before. The NFL is claiming ownership over the phrase “Who Dat.” According to WWLTV in Louisiana, the NFL wants to own a chant:

As the Saints’ appearance in their first Super Bowl gets closer, the marketplace is being flooded with Saints merchandise and memorabilia as businesses are looking to cash in on the euphoria, but the NFL is cracking down on the use of their trademarks, including the iconic phrase “Who Dat.”

For those who haven’t had the pleasure of taking in a football game at the Superdome, the full chant goes: “Who dat? Who dat? Who dat say dey gonna beat dem Saints?” So let’s be clear — the NFL claims it owns a chant of ungrammatical pidgin English that can’t even be pronounced properly without using a Bobby Boucher accent. The NFL doesn’t have what they call “the social skills.”
More details after the jump.

Having asserted ownership over broken English, it’s no surprise that NFL lawyers also claim to own the fleur-de-lis:

According to NFL spokesman Dan Masonson, “Any unauthorized use of the Saints colors and other [marks] designed to create the illusion of an affiliation with the Saints is equally a violation of the Saints trademark rights because it allows a third party to ‘free ride’ by profiting from confusion of the team’s fans, who want to show support for the Saints.”

I wonder if the NFL plans to sue Oliver Stone for his unlicensed use of the term “blue horseshoe”?
It’s not just the NFL that wants to make money off of the fans’ meme:

Sal and Steve Monistere recorded a version of “When the Saints Go Marching In” in the early eighties and incorporated the “Who Dat” chant into it. Aaron Neville recorded it, and performed with our own Eric Paulsen in an early ’80’s video version.
Because the song helped create the widespread use of the “Who Dat” chant, the Monisteres and their company, Who Dat, inc., say they own “Who Dat.”

Honestly, this would be like Kash claiming IP ownership over the term ass-lobster. Regardless of who started it, the fans themselves adopted it as their own. The fans gave it meaning, the fans gave it value, but now the NFL and the Monisteres are trying to glom onto that value — predictably, only when the team is good. I don’t remember hearing anything from the Monisteres or the NFL when the Saints were 3 – 13 and Mike Ditka traded away an entire draft for a pothead running back.
It’s just not cool. But, it might well be legal:

Loyola Law School intellectual property professor Ray Arieaux said the ownership of ‘Who Dat’ may be a gray area.
“Is there some unfair trade taking place because maybe the public does associate that with the Saints? The question is what does the public associate with ‘Who Dat,'” Arieaux asked.

Somebody get Judge Michael G. Bagneris. The man already respects Saintsmania. Maybe he’ll tell the NFL lawyers to keep their intellectual property theories in New York and stay out of the bayou.
NFL orders shops to stop selling ‘Who Dat’ gear [WWLTV]
Who Dat Think They Can Violate Our Intellectual Property Rights? [Deadspin]
Earlier: Who Dat Needs A Continuance?
Sports and the Law: Oral Arguments Begin Tomorrow in American Needle v. NFL

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