Alabama, Lebron James, and a Legal Game of Chicken

Two of the most dominant figures in all of sport threatened legal action against one another earlier this year. Lebron James, through his multimedia company “Uninterrupted,” sent a cease and desist letter to The University of Alabama’s football program over Alabama’s new online streaming show, “Shop Talk.” “Shop Talk” primarily serves as a recruiting tool to attract top high school football talent to Alabama. The show features Alabama’s current head coach, Nick Saban, and former players discussing a wide variety of topics inside of a barber shop while they get their hair cut. After Alabama received the cease and desist order they changed the name of the series to “Bama Cuts.”

Lebron James has a similar show which airs on his own multimedia site, “Uninterrupted,” and HBO. James’ show which is called, “The Shop,” features performers, professional athletes, and other celebrities in a barbershop where they too discuss a wide variety of topics while getting their hair cut. James stated that he wanted to recreate the atmosphere of barbershops that he went to as a child, he says “When I was a kid, being in barbershops meant listening to adults talk about sports, clothing, politics, music, everything happened in the shop.” The cease and desist letter that Uninterrupted sent to Alabama accused Alabama of infringing on Uninterrupted intellectual property rights in “The Shop.” The two shows are certainly similar. Both shows attempt to recreate the free-flowing conversation that occur in barbershops across the country. This barbershop scene is not new to pop culture, it has been depicted in movies, television and on the internet.

As Mark Twain once famously quipped, “There is no such thing as a new idea. It is impossible.” The internet gives voice to these “unoriginal” ideas while also providing an avenue for monetization, and when money and publicity are involved the world takes notice.

                Because of the somewhat ubiquitous nature of the barbershop scene it is unsurprising that someone had the idea to make a show on the topic before Mr. James. After James issued the cease and desist order, a Michigan based company, Adventure Enterprises, Inc., filed a complaint against James in the United States District Court For the Eastern District of Michigan alleging “[Uninterrupted’s] use of “The Shop” Mark for the appropriated barbershop cultural experience continues to create a likelihood of consumer confusion.” Adventure Enterprises also alleges that Lebron James and others “stole[] its Shop Talk concept and infringed on the Mark- all without Adventure Enterprises’ knowledge or consent.” The complaint goes on to allege that Uninterrupted and Adventure Enterprises were discussing a potential partnership to expand Adventure’s Shop Talk. However, in December 2016 Uninterrupted aired its own show called “The Shop.” Ultimately the attorneys for Mr. James prevailed; the case was dismissed with prejudice.

                This legal game of chicken is commonplace in the world of intellectual property. It is often an effective deterrent. After one party learns that another is potentially infringing on their intellectual property they will send a cease and desist letter before taking legal action. Much like what happened between Uninterrupted and Alabama, the party which receives the cease and desist letter will often change the mark they are using. If the potentially infringing party refuses to change their mark they could be subject to legal action. The threat of legal fees alone is enough to make even large entities with many resources, such as Alabama, change how they are doing business. So how does it affect smaller entities? Will the result always be the same as it was for Adventure Enterprises?

                 The internet makes these types of cases challenging. As Mark Twain once famously quipped, “There is no such thing as a new idea. It is impossible.” The internet gives voice to these “unoriginal” ideas while also providing an avenue for monetization, and when money and publicity are involved the world takes notice. When another is profiting from and garnering public recognition from something that one considers their own intellectual property the prudent decision is to send a cease and desist letter. However, this prudent decision also stifles the creativity of smaller entities. The party with more financial resources, and access to better attorneys, will always have an upper hand in court. The small entities know this. The small entities may make their own prudent decision and decide to simply stop using intellectual property, which they may vey well have the right to use, rather than challenge a bigger entity in court. When both prudent decisions are made in unison the result is a little less creativity in the world than there otherwise would have been.