Ms. Berg (Connie Berg, MSU assistant general counsel)
Thank you for your counsel on this matter.
As a faculty member, I am disappointed with the university’s handling of sexual violence broadly, as well as my #spartansact initiative. This initiative could have expressed positive leadership on this issue.I don’t mean any offense to anyone, but if the university was to take this on as an “official” initiative, it would be a complete failure.
The benefit of this project was that it was grassroots initiated from within the community to express positive leadership on sexual violence and also reclaim a sense of campus identity and to express positive identity and values that belong to all of us, especially during these trying times. The Hannah Administration building cannot credibly try to “own” these community values. That said, many of us are on the same page in terms of comforting those affected by this issue, to express positive values and best practices for confronting these issues in our community, and shaping a brighter future for the institution.
But you need to allow some of that process to be organic and grassroots, as I was trying to do. If the university wants to endorse all of these efforts, it will slow progress and lack credibility with many audiences. Recognizing a legally valid “fair use” claim would have allowed the university to importantly protect its trade mark, while also allowing — or at least not impeding — a positive, organic initiative to build capacity for survivors and to work towards prevention in out community. Trying to own and manage what it means to be a Spartan during these difficult times, including how members of the community, including students and faculty, express themselves on these issues, is, in my opinion, a strategic error to say the least.
The positive to come out of my failed attempt to be part of a grassroots solution with my colleagues and students, is that I learned more about the services in our community and the under-resourced needs that they have. I get why legally and in the court of public opinion the university’s first responsibility is to Nassar’s victims and programs that serve survivors on campus. But that in of itself is insufficient to take responsibility for the institution’s failures in these areas. But I would urge the administration to consider this:
With the issue of sexual violence constantly in the news and with at least a perception being created of mistrust non-profit organizations that provide services to survivors of sexual assault are being inundated with people needing their services. We’re not an overly wealthy community, and these non-profits have always been long under resourced, but they are particularly under resourced now. The university’s effect on those affected by sexual violence goes far beyond Nassar’s survivors. I get why legally and otherwise, those women need to be the central administrations’ primary concern. But sending all of the funding for services to out-of-state or campus organizations is taking incomplete responsibility for how the university has affected the community on issues of sexual violence. This was an opportunity for individual members of the community to respond to those unaddressed needs in our immediate community. These are complimentary interests/activities that even if the university can’t centrally be involved, should be allowed to take place.
That said, the administration, despite support from my dean and chair, has made clear that it does not want me to positively engage with this issue in this way. I think it is problematic to try to control my voice, particularly concerning social commentary and criticism, on this important issue of public concern. But especially as a non-tenured faculty member, I must also respect that this is the guidance of my employer. Despite college-level support, having gotten that signal multiple times from the central administration, it would be foolhardy to continue to try to do this awesome project to tackle a hugely important social issue that is affecting our community.
I need another week or so, but I will be winding it down and sharing your concerns with the #SpartansAct supporters, including many that expressed personally wanting to contribute to get this initiative off the ground.
Personally and professionally, I hope that the university continues to develop more effective messaging/response to this issue and does eventually chart a brighter future for the institution and the various communities’ it serves. I wish you all the wisdom and good luck as the institution continues to grapple with the fallout from this crisis and hopefully works towards improving its campus climate and culture.
Sincerely,
Brendan R. Watson, Ph.D.
Assistant Professor
School of Journalism
Michigan State University
brwatson@msu.edu
(517) 884–4487
http://brendanwatson.net
On Feb 9, 2018, at 2:33 PM, Berg, Connie <cbberg@msu.edu> wrote:
Dear Dr. Watson,
Thank you for explaining your planned use of #SpartansAct. Your proposed initiative involves Public Relations and MSU policy issues that go beyond trademark and branding issues. The General Counsel’s Office at MSU is here to look after the institutional interests of the MSU. I will preliminarily address the trademark issues and suggest you contact Communications and Brand Strategies (“CABS”), President’s Office, and Board of Trustees if you would like an interpretation or exception to a policy.
Like you, I am unaware of any trademark registration MSU holds on this exact term. With respect to trademarks, kindly note that MSU owns registrations for at least MICHIGAN STATE SPARTANS, SPARTANS WILL, and SPARTY. If an outside party had proposed your initiative, MSU would likely take enforcement steps for several reasons including: a stated impetus being the “controversy that has engulfed the campus,” target audience being “Spartans worldwide,” and stated goals for the initiative which are already underway by several units at MSU. In my opinion use of #SpartansAct would confuse the public because the initiative would likely be viewed as an MSU initiative. To characterize these activities as limited to social commentary and critique would be incomplete.
Given your employment status with the university, your actions will be viewed as assigned or endorsed by MSU which they are not at this time. MSU’s leads efforts in this area, including the recent establishment of the Healing Assistance Fund. Your program could be: (1) confused as the same; (2) in competition with; and/or (3) misdirect or divert a person from the services offered by that program.
I suggest that you take steps to coordinate your efforts with MSU units already working on similar projects. CABS can provide information as to if and how a Registered Student Organizations may use MSU marks.
Sponsorship/Endorsement issues are addressed by the Office of the Secretary of the Board of Trustees. The policy may be found at this link: http://www.licensing.msu.edu/sponsorships/
University Licensing is tasked with providing permission or licenses to use the logos and trademarks of the university including derivatives thereof. I would encourage you to continue to coordinate your use of #SpartanActs with that office.
While I’ve mentioned a couple of policies that may be relevant to your propose activities, there may be others. I encourage you to review the Faculty Handbook for additional information.
Thank you,
Connie Berg
Assistant General Counsel
Michigan State University
517–884–7972
cbberg@msu.eduFrom: Brendan R. Watson [mailto:brwatson@msu.edu]
Sent: Wednesday, February 07, 2018 6:31 PM
To: Berg, Connie <cbberg@msu.edu>
Subject: Guidance for faculty/students considering fair use of university trademarksMs. Berg,
I am writing you because I have gotten involved in a student and faculty/staff initiative called #SpartansAct. Our goal is to raise funds for services in our community that support survivors of sexual violence and work towards prevention of future sexual violence.
Our idea to positively channel individuals’ unease, sadness, and anger — and desire to take action to change the culture — around these issues in light of the controversy that has engulfed the campus. We’re leading a creative campaign (I am working with creative students in the College of Communication Arts & Sciences) that allows Spartans worldwide to positively express school spirit and their understanding of what that school spirit stands for while positively contributing to these organizations and not feel ashamed of wearing their green and white, lest doing so is interpreted as being unaware or uncaring about the university’s institutional failures. Our project is not limited to t-shirt sales, but we’d plan on selling a t-shirt with the Spartan helmet, the symbolic ribbon, and the phrase #spartansact.
Obviously the university has trademark rights for the Spartan helmet. I do think it is a bit aggressive to claim trademark of #spartansact, hashtag, one-word. The university has never used this phrase to promote its brands, services, products, etc. But that is a little beyond, at least for now. I am writing as a part of the campaign, a faculty member, and an advisor to students working on the campaign, to ask for your legal counsel concerning these activities, specifically as they relate to intellectual property issues.
I believe there is a fair use exception for the Spartan helmet and the #spartansact hashtag as a form of social commentary surrounding the issue of sexual violence and the university’s current involvement with this issue, including a great amount of critique of the university’s handling of these issues and the need to do more as a university to support survivors and prevention. In the context of a teal-themed, sexual-assault awareness campaign that is very intentionally raising funds for off-campus organizations, given the university’s institutional failures in this realm, is very clearly a form of social critique and commentary. We’re not marching on the administration building, but we’re also trying to approach this topic in a way that is trauma aware and also recognizes the need for a productive outlet for those who have been victimized by sexual violence and for how a heightened feeling of ager may not be productive/healthy.
That critique and social commentary is even clearer in the #spartansact hashtag that represents the following:
* We act to support survivors of sexual violence.
* We act to hold perpetrators responsible.
* We act to hold our institutions accountable.
* We act to stop sexual violence.As part of the campaign (and yes, as a professor of journalism in a college of communication arts, at a land-grant institution, it is absolutely in my job description to engage in creative work that speaks to important social issues; creates learning opportunities for students, including creative opportunities and lessons about campaigns/branding, free speech and intellectual property, etc. for students in my college) I am asserting we have a fair use to use the university’s Spartan helmet in this context. I also would contest whether the university has trademark rights over #spartansact (hashtag, one word). But regardless, assuming the university is correct, I’d also assert that the campaign has a fair use right to use #spartansact in the context of a campaign of social commentary and critique. (And we’d be happy to discuss with you language that we could use in our activities and promotion thereof to make it absolutely clear we’re not university-endorsed, eliminating any confusion of the “brands.”). I also believe that there is an element of Free Speech to consider, particularly as it concerns a government entity’s moves to restrict speech prior to its occurrence.
As a faculty member and an advisor of students working on this campaign within the purview of my university appointment, I’d ask for your legal guidance as to our interpretation of the law concerning our activities described above. Do we have a reasonable fair use claim to use those trademarks as described above? I would also ask for your counsel as to the likely repercussions if I or students continued with these activities? Would we anticipate a formal cease and desist letter from the party that owns these trademarks?
I must say, I think we’re on the same page of wanting to express positive leadership going forward about the issue of sexual violence in our community, beyond simply Nassar’s survivors, and ensuring a brighter future for Michigan State and its community going forward. And I understand the university’s interest in asserting/defending its trademark rights. But recognizing our rights to also speak freely on these issues, including to use symbols of this campus freely to engage in social commentary and critique, does not negate the interests of the university. Beyond a copyright issue, I’d actually argue quite passionately that our faculty and students’ leadership and speech on these issues reflects positively on the campus’s culture and values.
Check out some of the great work our students’ are doing: http://facebook.com/goteal and http://facebook.com/spartansact
I have a meeting with our student steering committee on Friday morning, so your timely counsel on these activities is greatly appreciated. I am happy to also meet with you if it can help chart a productive path forward.
Sincerely,
Brendan R. Watson, Ph.D.
Assistant Professor
School of Journalism
Michigan State University
brwatson@msu.edu
(517) 884–4487
http://brendanwatson.net
