You Must Roll 18 or Higher for Your Claims to Succeed: Common Law Trademarks, Unauthorized Merchandise, and the Podcast 'The Adventure Zone'
27 Pages Posted: 26 Oct 2020
Date Written: August 21, 2020
Justin, Travis, and Griffin McElroy are among the people who found notoriety and fame during the podcast boom of the 2010s. In addition to their main podcast, “My Brother, My Brother and Me,” thousands of people listen to their tabletop role playing game podcast, “The Adventure Zone,” which they make with their father, Clint. “The Adventure Zone” has been adapted into a graphic novel and a streaming television adaptation is in development.
With this comes fans who show their love for the podcast through fan art, some of which is sold online. The McElroys have stated they do not want fans selling items based on their podcasts, although presently have not taken any legal action against fans. The McElroys are one example of people who have become extraordinarily successful because of their podcasts and have reason to protect their creation.
Using trademark law, I examine if the McElroys have any legal recourse for infringement. As they do not have any registered trademarks, all possible issues are examined as common law trademarks. The McElroys’ ability to protect characters, as well as items appearing in the podcast, as marks varies depending on the story-line of “The Adventure Zone.”
The McElroys and other podcast creators have varying levels of protection for elements of podcasts used as marks. The idea there is broad legal recourse seems like an empty threat made against fan artists. Further, the idea of “bad faith” appears both in trademark infringement and unfair competition. With the statements made by the McElroys, they have presented all people selling unlicensed merchandise as acting in bad faith. This runs contrary to the very roots of artistic expression and courts indiscriminately finding for podcast hosts could harm the delicate relationship between podcast hosts and fans, as well as the ability for fans to interpret and share their love of a property.
Keywords: Podcasts, Trademarks, Intellectual Property, McElroy Brothers
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