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Will SCOTUS Decide the Fate of Dancing Babies and Offensive Names?

By Casey C. Sullivan, Esq. | Last updated on

So far, the Supreme Court has agreed to hear just over 30 cases during the upcoming term, but that number is sure to balloon in the coming weeks and months. Next week, for example, the Court will begin its "long conference," going through the cert petitions that have accumulated over the summer, followed by more cert reviews as the term goes on.

But the Court's makeup could be pushing it to accept some petitions while passing on others. The "shorthanded and ideologically divided Court," Reuters' Lawrence Hurley reports, is "showing a keen interest in more technical cases," such as intellectual property disputes. Among the drier cases that the Court could take up is a dispute over a dancing baby and a controversy over an offensive band name.

Who Says IP Law Is Dry? This Case Has a Dancing Baby!

The Supreme Court already has four IP cases on its docket, but could agree to take up more, in order to avoid potential 4-4 splits and divisive decisions. A prime candidate for a cert grant is the so-called "dancing baby case," Hurley notes.

That case, Lenz v. Universal Music Group, involves a brief video of a toddler dancing while a short clip of Prince's "Let's Go Crazy" plays fuzzily in the background. After Stephanie Lenz uploaded the clip of her dancing child, Holden, she received a takedown notice from Universal Music Group, who claimed that the background track violated their copyright to the song. In a rare move, Lenz fought back, leading the Ninth Circuit to rule last September that companies must consider fair use before issuing takedown notices.

A case such as Lenz's could be appealing to the justices, as IP decisions tend not to break upon traditional ideological lines, Hurley notes. Last term's two big IP cases were decided 8-0, for example.

Offensive Band Names (and Offensive Team Names)

Another possible cert grant could go to a dispute over the name of an Asian-American "Chinatown dance rock" band, The Slants. The group said it chose its name to "take ownership of Asian stereotypes," but when it applied for trademark protection, the U.S. Patent and Trademark Office turned them away. The Slants' name was the sort of "scandalous, immoral, or disparaging marks" that the Lanham Act denies trademark protection for, the PTO explained.

That led the Federal Circuit to strike down the Lanham Act's "disparaging marks" prohibition in December, ruling that it was unconstitutional viewpoint discrimination.

That ruling, of course, has far-reaching implications. The Redskins, for example, had its copyright protections denied under the same section of the Lanham Act. The Redskins, too, want their name dispute heard by the Supreme Court, should the Court grant the Slant's petition.

Whether they, the Slants, or any dancing babies make their way before the justices this term remains to be seen. But if Hurley's predictions are correct, their odds are better than most.

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