It's Better to Ask for Permission than Forgiveness When Portraying BGLOs on Screen & Stage

Last week on HBO's Insecure, an online controversy arose when Amanda Seales character, Tiffany, was seen sporting a pink and green sweater with the letters and shield of Alpha Kappa Alpha Sorority, Inc. embroidered on it. I thought that this intersection of Black Greek Letter Organizations (BGLOs) and trademark law was an interesting one, especially as an intellectual property lawyer and member of Kappa Alpha Psi Fraternity, Inc., another BGLO that is a member of the Divine 9. While I typically stay out of the affairs of other organizations, after a number of discussions online, I thought I'd make a couple of points about it here.

Depictions of BGLOs

BGLOs have long been portrayed on the big and small screens. In the late 80s, BGLOs were depicted by Spike Lee in his film School Daze, along with television shows like A Different World. However, the main characters in both School Daze and A Different World were depicted pledging fictitious black fraternities and sororities at fictitious black colleges. As such, they never wore any actual BGLO paraphernalia in their depictions. Additionally, when the paraphernalia of BGLOs was used, it was usually by actual members of the organizations and according to a recent Facebook post of one of my fraternity brothers, with permission.

Recently, there have been a variety of depictions of BGLOs, along with their paraphernalia, by people who are not members of the organizations. Omari Hardwick, a member of Alpha Phi Alpha Fraternity, Inc. donned an Omega brand, which is typically a symbol of the members of Omega Psi Phi, in the movie Army of the Dead. The Metropolitan Opera did a segment depicting Kappa Alpha Psi Fraternity, Inc., in its show "Fire Shut Up in My Bones," which was based on the book of my fraternity brother Charles Blow under the same name. Also, as stated above, in a recent episode of Insecure, actors portrayed members of Alpha Kappa Alpha Sorority, Inc. and Omega Psi Phi Fraternity, Inc., however, no Omega paraphernalia was depicted in the show.

Some have said that it's just acting and it shouldn't be a big deal. To this point, I agree that in these fictitious worlds, they can write the characters to be whoever they want them to be and in whatever organization that they choose. However, the issue of late seems to be that actual BGLO paraphernalia is being used, and the question begins to arise, should the organization be asked for specific permission, similar to how many corporations are consulted with before depicting their logos on a show or movie? Specifically for paraphernalia, which most BLGOs have registered trademarks for, as well as particular customs on how they should be portrayed.

Trademark Law Considerations

When it comes to branding and likeness issues, you find yourself in the world of trademarks. While art like television shows and music are typically given some freedom in this area, there have been documented cases of artists being sued for misrepresenting a particular person or brand. One of the most famous cases was when Mattel sued MCA Records, for the 1997 song Barbie Girl by the group Aqua. The courts ruled that the song was not a violation of the toy company's trademark, and qualified as a parody use.

Another case was when Rosa Parks sued LaFace Records for a song by the group Outkast, which used Parks name for the song and contained the lyrics "everybody move to the back of the bus," referring to Parks refusal to move to the back of the bus in Montgomery, Alabama, which eventually resulted in the Montgomery bus boycott led by Martin Luther King, Jr. While the case was granted summary judgment by a federal district court, the United States 6th Circuit Court of Appeals determined that there were genuine matters of the Lanham Act, which covers trademarks, at issue. The court also determined that a 1st amendment defense was not enough to dismiss Parks' claim in this case.

That being the case, when a musical artist or a writer decides to use a person or organization's likeness, one of the best ideas is to get written consent from that person or organization. Even though there is legal leeway for artists to use work in things like parodies, many that are known for doing parodies like Weird Al Yankovic still get permission from the writers to use their material. However, getting permission from some organizations can sometimes be tricky, as was seen by Spike Lee who was kicked off the campus of his alma mater, Morehouse College, in the filming of his film School Daze. Lee would eventually use Mission College, a fictitious college, as the setting for his movie.

In the case of the show Insecure though, it seems to have had better luck than Lee did with his alma mater and was given permission from Standford, who the show's creator Issa Rae is an alum, to use its campus for filming. This permission to film was of particular note because the school had previously had a "no filming" rule, which prevented other works like Legally Blonde from using the campus. In like manner, it would have also been wise for the show to seek the permission of Alpha Kappa Alpha before displaying its paraphernalia on the show, to prevent any potential legal action from the organization.

I also discussed the ramifications of what could happen if BGLOs actually went through with pursuing legal action against a network or production with a friend and fellow intellectual property attorney, who is a member of Alpha Phi Alpha Fraternity, Inc. and serves as the Senior Counsel, IP Agreements and Transactions for a fortune 500 company. We noted that it could end in two different ways.

One result would be networks and productions going about getting permission from the BGLOs in the future, especially if the BGLOs were to win a lawsuit or get big settlements resulting from their claims of improper use. The other result would be if the BGLOs were to pursue action and lose, they could find themselves having very little recourse in future actions, especially if the defending party were to invalidate their trademark registration(s). This second scenario could also make it difficult for the other BGLOs pursuing future actions, because all future parties would begin citing the case as established law on their ability to use the mark without consulting with the organization. I personally would hate to see the later result take place, largely because it would likely be black Hollywood that would be responsible for delivering this death blow to BGLOs ability to enforce their own marks. I suspect that part of the reason that they are being depicted is some form of homage, but that would mean very little if it resulted in the hindrance or invalidation of their trademarks.

Conclusion

While there is some legal leeway for portraying BGLOs on screen, the safest thing to do would be to get clearance from their headquarters, who should have the rights to their trademarks. This is especially if they are going to display their paraphernalia on a show or film, which most BGLOs have registered trademarks and customs that could give them a potential legal claim for what they deem as improper use.