Minor Threat -- of litigation...

I won't try to recount the history of Dischord Records, except to say that I've been a fan of the ethos as well as the music. I met Ian Mackaye a few times, over ten years ago, and was always impressed with how "normal" he was for someone who was justifiably an icon of the independent music world -- whether standing at the back of a church hall after a Jawbox show handing out fliers for some other event a couple weeks later, or ribbing me for having the first Fugazi EP showing at the end of a crate of records I was moving, or talking about sharing classic dub plates with Calvin Johnson years before the Dub Narcotic singles came out. His disarming demeanor made it very difficult to be a fawning fan-boy in his presence.

The knee-jerk reactions continue to be fairly predictable -- "that's not fair!" and "Dischord wouldn't sell out like that!" In this instance, however, the law is more-or-less consistent with these gut feelings.

The easiest case is one of copyright infringement, of both the "jagged" MINOR THREAT logo (from the Out of Step album) and the cover art to the first 7" record (subequently recycled for the 'two 7"s on one 12"' release and the complete discography). In both cases, Nike has created "derivative works" based substantially on the Minor Threat originals. Setting aside a brief foray into copyright ownership (probably Dischord, perhaps Jeff Nelson for the jagged logo, perhaps the photographer - Cynthia Connolly? Susie Josephson), the Nike image is clearly modeled on the Minor Threat originals. The fact that Nike re-staged the photo is not enough to get them off the hook, nor are the small changes between the two. (The use of the same shade of blue as the first-press "Complete Discography" CD compounds Nike's problems, while also pegging the target audience and creative designer as being too young to remember the vinyl sleeves/jackets in red, yellow, lime green, and light blue.)

Yes, there's an opportunity to argue about fair use -- but Nike loses badly on three of the four enumerated (but non-exclusive) factors. Nike's poster is only minimally transformative of the original [and is better described as a substantial, slavish imitation]; Nike's poster has a commercial use/purpose [unlike, say, this commentary that may reproduce the image]; and Nike's poster may actively harm the "market for the original" to the extent that someone sees the poster and thinks Dischord sold out. Any copyright parody defense also fails, since there's no real commentary on or fun being poked at the original work, unlike the many punk appropriations of corporate slogans and logos.

There's also a right of publicity claim lurking out there at common law. One of the causes of action lumped under right of publicity is the right to withhold use of one's image or likeness for commercial purposes. Again, you have a potential problem with ownership -- Minor Threat no longer exists as an entity, Dischord would have some difficulty asserting a claim as successor-in-interest to the band, and there's a tricky burden of proof to show that Ian MacKaye's right of publicity is implicated by the misuse of his former band's record artwork. Ultimately, the best claim probably falls to Alec MacKaye as the subject of the original photograph (a fact I can't seem to otherwise corroborate right now). Alec would have to argue that Nike didn't receive permission to use his likeness, that the look-alike was carefully designed to evoke his image and appearance, and that he did not sanction Nike's look-alike. There's precedent in the Waits v. Frito Lay and Midler v. Ford Motor sound-alike cases, and especially White v. Samsung Electronics where Vanna White sued and won for Samsung's use of a robot in a wig and gown on the imagined set of a 23rd century Wheel of Fortune. (Many who come across this case often forget that the published 9th Circuit opinion is Alex Kozinski's dissent from a denial of Samsung's petition for a rehearing en banc.) The fact that Nike and its primary ad agency, Wieden & Kennedy, are both based in the 9th Circuit is just a bonus -- that makes the appellate decisions binding precedent if a case were filed out west.

The pure trademark claims are again complicated by ownership and usage. Dischord can probably make a reasonable claim that it uses the MINOR THREAT mark as a source identifier for pre-recorded music, t-shirts, posters, and adhesive stickers -- the band of course no longer exists to claim trademark rights for the musical services offered under the name. There are two different marks in play -- the jagged logo hand-drawn by Jeff Nelson and the MINOR THREAT words -- but the analysis would work the same way, with Dischord alleging an attempt by Nike to trade on the goodwill in the MINOR THREAT marks through unauthorized use and corruption. There would be an implied tarnishment claim in here as well, though it couldn't be brought directly since the Supreme Court's absurd decision in the Victoria's Secret case. The quagmire of trademark parody law would also rear its ugly head, where the cases are all over the map -- ENJOY COCAINE and MUTANT OF OMAHA t-shirts lose to Coca-Cola and Mutual of Omaha respectively, while LARDASHE jeans and LL BEAMS BACK TO SCHOOL SEX CATALOGUE win over claims by Jordache and LL Bean. Nike would have a hard time arguing that it's making fun of MINOR THREAT (since it's really appropriating the goodwill of the MINOR THREAT mark within the punk / skater community for itself).

Bottom line: Dischord certainly has the grounds to duke this out with Nike if it wants to do so -- though (as others have noted), it would get expensive and perhaps runs counter to the Dischord anti-corporate ethos in the first place.