Shave and Infringement: Two Bits

On Behalf of | Apr 17, 2018 | Firm News, Trademark & Copyright

shave

LeBron James’s media company, Uninterrupted, has recently sent a cease and desist order to The University of Alabama (UA) regarding UA’s “Shop Talk” web series. Uninterrupted claims that UA unlawfully copied protectable elements of Lebron’s hit web series, “The Shop,” thereby damaging Uninterrupted’s commercial prospects. It is easy to see the similarities in the two shows. Each stars famous athletes talking about sports unscripted while getting a haircut. Each takes place in a barbershop. Each lasts 30 minutes. UA’s Shop Talk also began shortly after Lebron’s The Shop became a hit.

Another similarity between the two show are the logos. The first episode of Shop Talk featured the word “Shop” in all capital letters and a white, upwards facing pair of scissors. However, after Lebron’s letter, UA voluntarily changed their logo after the first episode to a downwards-facing pair of scissors and changed the name of the program to “Bama Cuts.”

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Alabama Football’s program “Shop Talk” for the first episode (top) and Uninterrupted’s “The Shop” (middle). Alabama changed their logo after the first episode in what looks like an attempt to avoid the copyright battle they are now a part of (bottom).

Uninterrupted cannot claim copyright protection simply for people talking about sports in a barbershop setting. That trope is just too common. It has been used to great success with  Eddie Murphy in Coming to America, Cedric the Entertainer in Barbershop, and many more.

What Uninterrupted can claim trademark protection for is the unique manner in which they utilize the barbershop space to portray sports talk. Uninterrupted uses unique camera work to showcase unscripted dialogue between famous athletes in a barbershop setting while getting a haircut. To prove infringement, Uninterrupted would have to show that Bama Cuts depicts the scene in a substantially similar way as The Shop, and that customers are confused by the similarities in the shows.

UA has essentially three defenses if this case escalates beyond a letter. UA can claim that there is no substantial confusion (especially after the name change), fair use, and scenes a faire (law French for “scenes that must be done”).

Substantial confusion is the likelihood that a consumer of one product would be confused by the similarities in two products to the point of unintentionally consuming one product when he wanted to consume another. In this case, the similarity in the names “Shop Talk” and “The Shop” are very similar, and the upwards-facing pair of scissors could be interpreted as a trademark that indicates similar ownership of the two shows. However, since UA voluntarily changed their name and logo to “Bama Cuts” and a downwards-facing pair of scissors, the confusion argument has become much weaker. Uniterrupted would have to rely heavily on its unique elements – which are not truly that unique – to prop up its claim.

Second, UA could claim fair use. Fair use is an exception that would allow an otherwise infringing work under some circumstances. Some of the factors a court uses to determine if a work is fair use is the creativity behind the original work and the degree to which the later work transforms the original. Here, UA would argue that people talking about sports in a barbershop is not original, and in any event UA transforms the work by including a coach in addition to players. Uninterrupted would counter that the manner it depicts barbershop talk, with famous athletes speaking off the cuff and the unique camera work, make The Shop unlike any other depiction of barbershop sports talk ever portrayed. Uninterrupted would further argue that the presence of a coach is not transformative of The Shop, as a coach should be a natural inclusion in any sports discussion.

Lastly, UA could claim scenes a faire, or the scenes that must be played. It generally refers to the fact that common elements of a story, genre, or cultural phenomenon are too commonplace to be copyrighted. The Second Circuit Court of Appeals illustrated an example in the case Walker v. Time Life Films. The case involved two movies: Fort Apache, and Fort Apache, the Bronx. Both movies involved the murder of policemen and other elements of slum living. The Second Circuit ruled that any movie that depicted the South Bronx would necessarily have elements such as “drunks, prostitutes, vermin, and derelict cars.” The Court held that those elements were not copyrightable and therefore any copyright claims based on those elements failed. In this case, UA would argue that off the cuff talk is a cultural phenomenon and a staple of barbershop banter. The setting of a barbershop necessitates unscripted banter. Uninterrupted would counter that no previous barbershop sports-talk depiction was truly unscripted, and that UA’s decision to depict unscripted talk specifically in a barbershop came only after they saw the success of Shop Talk.

Is the new logo enough to keep UA out of trouble or will UA’s show get cut? UA is skirting the razor’s edge, and this case is a close shave.