There is a fun little copyright dust up that makes me think of pink hair. Forever 21 is chain of stores that targets teens and tweens. The chain sold shirts that appear to contain an image that the punk band Minor Threat used on the cover of their 1983 album, Out of Step. From a quick TESS search, it doesn’t appear that the band/label registered the image.
So is the manufacturer of the shirt and Forever 21 potentially liable for copyright infringement? 37 CFR 202.1 states the following:
The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:
(a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents; [emphasis added]
So, is the image of the phrase “minor threat” merely typographic ornamentation or does it possess sufficient originality to be granted exclusive rights as a “pictorial, graphical, or sculptural work”? And, if the work is granted exclusive rights would it survive a fair use analysis? Or, could there possibly be a viable common law trademark claim?
Looks like the answer to these questions is gray enough for the Dischord Records to send a cease-and-desist. Says Alec Bourgeois who conducts publicity at Dischord:
This is an unauthorized shirt and it is still unclear whether the shirt was produced by Forever 21 or if it is a bootleg that they just happen to carry. Either way the members of Minor Threat are looking into it and Forever 21 will be asked to stop selling it.
In the beginning, Minor Threat did not license anything and any shirts you saw were screened by band member Jeff Nelson. But Jeff stopped screening shirts and over the years the band members realized that the shirts were going to be made with or without their permission, so they may as well authorize a couple friendly printers in order to better control the quality, content and revenue.
The band and the label tend to deal with bootleg shirts on a case by case basis, acknowledging the vast difference between kids screening shirts for friends and professional printing studios screening shirts for profit. Obviously this absurd Forever 21 shirt falls under the ‘unacceptable’ category.
Some of you may remember a similar 2007 t-shirt dispute between Minor Threat and Nike.
Recent scholarship from the 
2 Comments
Ouch! Didn’t register the trademark, not that it wasn’t “trademarked.” It is a trademark, just common law –
Thanks for the heads up, P. Of course you’re right with the language correction — which is why I try to refrain from commenting on trademark issues whenever possible.