I’ve been watching the sad Clipper Darrell super fan saga with great interest. He says he is devastated that the Clippers told him that they preferred for him to drop the “Clipper” out of his name. Upset enough that just talking about it makes him cry (Part 1 and Part 2 on YouTube).
The Clippers responded with a crushing, ugly statement saying that that Clipper Darrell “has not returned our support in an honorable way. He is not actually a fan of the Clippers, but a fan of what he can make off of the Clippers.”
A followup article by Dan Wetzel from Yahoo! Sports muddies up this more. Clipper Darrell says that “not a fan” statement was “hurtful man…They said I was never a fan.”
The Clippers crawfished a bit from their statement, telling Yahoo! Sports they actually, “never questioned Mr. Bailey’s role as a fan at games. This matter concerns Mr. Bailey’s activities outside of Staples Center games.”
I don’t know. That Clippers statement was a brutality.
The Legal Issues of Clipper Darrell’s Super Fandom.
I’m a lawyer who also is a sports super fan—the fandom came through a strange, unplanned evolution. I know a lot of super fans of all sorts (super-tailgaters, bloggers, forum managers and moderators, dressup types) across the country so it is easy for me to sympathize with Clipper Darrell.
Thought it would be interesting to create a discussion about the legal issues relating to super fandom. This gives me an excuse to write a blog post with one of my high school buddies who happens to be a very smart guy. Gene Spears is an intellectual property lawyer with Baker Botts, LLP. While his practice primarily involves patent litigation, he claims to “know enough about trademark law to be dangerous — and to be fascinated by this whole Clipper Darrell business.”
If you are in the need of intellectual property and patent law counsel, Gene is a very handy person to know. Here’s our emailed discussion of this topic (weasel caveat: not legal advice, personal opinions to not be put on clients):
Legal Actions Against Nicknames?
Steph: “Clipper Darrell” was a nickname given to Darrell Bailey by radio folks. Not an unusual occurrence for big fans of a particular team to have that team name be a part of their nickname. Every sports radio station hears from team name guy, every message board has team name guy forum names and often message boards have team names in them. There are thousands of these sort of nicknames, though probably not too many for the Clippers given their history.
Common sense and advisability aside, can a sports franchise from a legal standpoint stop a fan from going by a nickname that includes the team name? What are some factors involved with that?
Gene: A sports franchise would have a very hard time stopping their fans from adopting nicknames that include the team name. Trademark law regulates uses in commerce of trade marks or trade names. Calling oneself “Clipper Darrell” or “Texans Chick” or “Cowboy Clueless” does not amount to a commercial use — though blogging, publicly speaking, or hawking t-shirts and whatnot under those names would qualify.
As in copyright law, there is a “fair use” doctrine in trademark law, which, e.g., allows you and your commentators to comment on how the Texans defense sucks (or rocks, in the case of the 2011 season). The same doctrine should allow you to use the Texans name to identify yourself as a Texans fan. I don’t see much difference between Mr. Bailey’s saying “I’m Darrell, the Clippers fan” and “dude, I’m Clipper Darrell”.
Trademarks are not property in the same way that patents and copyrights are. They are property surrogates that enable interested persons and firms to police the marketplace for consumer confusion relating to their products and services. In the case of the Clippers and Texans, the law’s more for the fans than for the team. As long as Clipper fans don’t expect that Clipper Darrell or Clipper Biff, Clipper Buffy or anyone else with a Clipper nickname is using those names with the team’s permission, I don’t see how there can be a trademark problem. As you indicate in your question, this sort of nicknaming is pervasive.
In Darrell’s case, the Clippers would have another problem — that they’ve allowed him to hold himself out (very publicly and with much flamboyance and flair) as Clipper Darrell. Federal trademark law has no statute of limitations.
Instead, the timeliness of suit is governed by a loosey-goosey equitable doctrine called “laches.” In applying this doctrine, a federal court in California would consider the strength of the trademark, the plaintiff’s diligence, the harm to the plaintiff, defendant’s good faith, the degree of competition, and the harm to the defendant caused by the plaintiff’s delay. The Clippers may be historically lousy, but their mark (like all the NBA marks) is strong.
The next four factors are pretty straightforward. The last one’s pretty interesting. If the Texans were to come under the ownership of a sociopathic tooljob (is that you, Bud Adams?) and try to stop you from blogging as Texans Chick, you’d have a pretty good argument that changing your handle might lose some of those readers whose interest you’ve worked so hard to hook. In Darrell’s case, I’m not exactly certain what the prejudice would be. There may be some personal existential crisis involved in surrendering a name that one’s worn comfortably for years, but that may be a bit too Zen for a federal judge.
Steph: I don’t know. How do you stop people calling you a sports nickname you’ve answered to for years?
Clippers Chasing Nickles. Do They Have an Obligation to Monitor Interviews and Financial Gains?
The Clippers seemed concerned that Clipper Darrell wasn’t advising them of his interviews and public appearances as a super fan. They complain about his “unmonitored financial gain.” He wasn’t an employee or had a personal services contract with them. Do sports franchises have a legal obligation to monitor this sort of thing? Why should they even care?
Gene: This is an interesting question, but it’s well outside my field and any answer I’d provide would be more-or-less pulled from my nether regions. I do know that the agreements between the Clippers and the NBA are very lengthy, very comprehensive, and may touch on this very issue. But that’s pure speculation on my part.
Steph: As a super fan, I think it is sort of bizarre. The Clippers statement basically says “he was not an employee, so they did nothing wrong in telling him not to be Clipper Darrell.” Who thought he was anything other than a big time fan?
The Wetzel article claims “The team told the Los Angeles Times it offered him a $70-a-night job as a cheerleader. Darrell said it never happened.”
I don’t think people that might have wanted to hire Clipper Darrell for appearances were hiring him because he had Clipper in his nickname. They would hire him because of his unwavering enthusiasm and ability as a hype man. When people like super fans, it’s because they think it’s cool that someone is as out there loving a team as much as they are. And they probably want a picture to put on Facebook. You can’t get pictures of the players easily but you can of silly dressed up fans. Clipper Darrell is not remarkable just because his enthusiasm but because he clearly wasn’t a bandwagoner in a town where it is easy to become one.
He says in the Wetzel article he’s made about $7500 as a super fan over 18 years. Generally speaking, I can tell you from personal experience that superfanning for most fans is a money and time suck. Team-oriented fan-run sites often have a hard time getting enough money to pay for site hosting. Show me someone who runs a crazy-over-the-top tailgate, and I will show you someone that has spent a ton of time and money that they will never get back.
I am certain that the Clippers have received more than $7500 in good will publicity (prior to recent events) from Clipper Darrell, whether he was doing things for free or being paid.
I will not confess to how much money I’ve spent over the years on Texans tickets, clothing, events etc. It’s embarrassing.The biggest expense is the time spent doing Texans stuff that could have been spent doing other things. Not complaining, just saying.
Team Website Names.
Back to question time: The Clippers apparently were concerned that Darrell made money from his association with the Clippers. His website shows a few trinkets that he likely didn’t sell much of. And perhaps some personal appearances. Do the Clippers have a legal obligation to stop Darrell from making money from his super-fandom skills?
Gene: This question does raise an issue of trademark law. So in I go!
Very Bad Things can happen if a trademark owner does not police his mark. If enough unauthorized users enter the market, the mark’s “secondary meaning” (the public’s identification of the mark with a specific source of goods and services) can be undermined. Because the Clipper’s marks are mature and likely incontestable in all fields where they’re used, secondary meaning’s likely not an issue for them.
“Genericness,” i.e., the equation in the public’s mind of the mark with the product it’s sold under, is a potential problem and a trademark owner’s chain-rattling nightmare. For several decades in the last century, Hoover could not enforce its trademark for vacuum cleaners, as the public was referring to all vacuum cleaners as “hoovers.” A similar thing nearly happened to Kleenex. This is why the owners of valuable trademarks — the Coca-Colas and Apples of this world — can get downright nasty in their enforcement practices. Many trademark owners respond to unauthorized users in the same way you’d respond to a cockroach in the kitchen — with a stab of visceral disgust followed by an uncontrollable urge to squish it flat.
Even a historically lousy franchise like the Clippers makes some money from merchandising, though I imagine it’s a drop in the Pacific Ocean compared to the other LA team. Clippers t-shirts, bobble heads, foam hands, and other branded made-in-China whatnot are not like vacuum cleaners or facial tissues. No matter how many unauthorized sources enter the market, nobody’s ever going to refer to a t-shirt or bobble-head as a “Clipper.” The risk of genericization (I don’t know if that’s a word) is minimal. Nonetheless, cockroaches and unauthorized users being what they are, the response to them is almost autonomic.
Clipper Darrell could create some serious headaches for the Clippers if he starts sticking his name on stuff they haven’t yet branded. This could interfere with the franchise’s ability to enter those markets in the future and seriously impede their ability to secure trademark protection in those spaces. Were I trademark counsel to the Clippers, this is likely the reason I’d be looking to curtail Darrell’s money-making ventures.
More on Nickname Control, Use.
Steph: Yet another level of weirdness to this matter is the Clippers objecting to Bleacher Report being credentialed to do a story on Clipper Darrell because it benefits them and provides no benefit to the Clippers. I am thinking given how their owner has conducted himself over the years, he doesn’t really care one way or another for the concept of good will or utilizing fans as their best brand evangelists.
It’s like they wanted to control Clipper Darrell’s media activities because they gave him free tickets to do his thing. So what? Can you imagine other franchises trying to do that with their super fans?
Next Question: It is not uncommon for sports teams/layers to ask websites to change their website name, design to clearly reflect no affiliation. Usually they are firm and very nice about it. Given the long history of fans having fan/player names as part of their nicknames, do they have an obligation to tell fans not to go by a nickname?
Gene: If the Clippers (or the Texans) want to regulate the nickname usage of their fans, then yes, absolutely, they need to be getting those cease and desist letters out. While I have a hard time envisioning how a team name can go generic for branded merchandise, I can easily imagine how, through nickname usage, the team name can go generic as a reference to fans of the team. For any team with a significant fan base, the horse has likely already left that barn.
The Texans would have a hard time walking-back Texans Chick (or Texans Biff, Texans Buffy, etc.). Which is why you aren’t going to see those cease-and-desist letters unless the team’s acquired by an owner who’s both a sociopathic tooljob AND a trademark lawyer.
Web site affiliation raises another interesting issue. As a blogger on All Things Texan, I assume that you (and your readers) value your independence, that your lack of association with the team makes your voice more objective and credible. It’s great that you have that spiffy chronicle logo in the upper-land hand corner of your front page, to make it all the more clear that you are not some spokeswoman or propagandist for the team. If the Texans were to offer you the position of official blogger to the franchise, would you accept it? I’m guessing that the answer’s no.
Steph: I think that fan nicknames are so ubiquitous that nobody seeing my writing would confuse a Texans Chick Stephanie Stradley blog at the Chronicle with an official website. Actually, someone from the Texans once asked me if I had interest in blogging for their website, but at the time I was writing for AOL Sports’ FanHouse. After considering it some, I decided that I could do more for fans and the team at the time if I were writing for that site given the people I met through that, and the things I was learning at my time working with them.
I am a crazy dressed fan because I think sports are a special event, and you go to special events wearing appropriate style. Makes games more fun and sports are supposed to be fun. I started writing about the Texans because I couldn’t find stuff I wanted to read about the team. I thought it would be a good thing for fans to encourage more reasoned dialogue about the team. (There weren’t many Texans blogs after a 2-14 season).
But I am not objective. I am totally biased. But I am transparent with my biases: I want the Houston Texans to win with the fire of billions of immense suns. But I think you can want that outcome and still write with the intent of being fair and accurate. As a fan, I don’t want to read people blowing smoke at me. I like writing with a point of view, and ones supported by logic and facts. Sometimes people think that I’m Texans Pravda, and sometimes they think that I’m too critical, but I figure the only way to agree with everything that is written is to write it yourself.
Interestingly, there’s become a trend of hiring journalists to write for official sports websites. They claim to write the stories as journalists and not flaks, but there will always be skepticism from those who do not agree.
I’ve been offered a lot of money for some of the outfits I wear, and have been told I should sell my blinged jerseys. I’m not messing with NFL licensing one bit. “Texans Chick” is a descriptive nickname, and my outfits are for my own personal use (or for my friends when they need to borrow something for a game).
I’ve said this before, if I knew I would end up writing about a team for a newspaper blog, I likely wouldn’t pick that name. I know it turns some people off. But I answer to it, and it’s how some people know me, so it has stuck.
Ultimately, if I were to go from super fan sort (dress up fan/blogger) to employee of the team, likely the best use of my unusual background, connection with fans and blogging would be in more of a fan engagement management sort of role with a blogging/social media component. If you work in for a team, you likely were some sort fan first. I think Daryl Morey, GM of the Rockets is a most amazing example of someone whose brains, passion and enthusiasm for sport turned into something monetized into fabulous. It’s a sports dork’s dream.
And just because he makes money doing it, it doesn’t mean he is any less of a fan. He’s just now evolved into a different sort of fan. And if you talk to some of the people who work for teams, they say it can be fun but it can be very long-houred work. It’s a job. Sometimes people can make their hobbies into jobs, but it can be challenging doing so without sucking the joy out of it.
Defamation?
Another topic: Clipper Darrell was “DEVASTATED!!!” (three exclamation points!!!) in his blog post written before the Clippers statement about being asked to take the Clipper off of his nickname. The team’s statement read like a team kicking someone when they were down. It gratuitously slams Clipper Darrell stating, “We hold all of our fans in the highest esteem and we have been patient and generous with Mr. Bailey. He has not returned our support in an honorable way. He is not actually a fan of the Clippers, but a fan of what he can make off of the Clippers.” (my emphasis)
Seems to me that no matter how much money he made from being a Clipper super fan, you’d have to be a fan to watch that many games of bad basketball and be supportive of the team. Can you imagine how much grief you get driving around Lakers territory in a BMW with a Clipper logo on it? Per se fandom.
I cannot fathom how painful this would be. I understand him crying. To be that completely vested in a particular team for most of your adult life, and for that team to publicly trash the nature and motives of your fandom?
Gene: I agree, this is PR fail of epic proportion. I also agree that going out of one’s way to disparage someone, especially someone who is not a public figure (or only marginally so) is a very bad idea. If Clipper Darrell were Clipper Debby, is there any doubt in your mind that Gloria Allred would already be on the case, calling her press conferences and hogging the cameras?
Steph: It makes me wonder if litigation or bad PR is why in their interview with Yahoo Sports!, the Clippers seemed to edge away from their blanket statement impugning Clipper Darrell’s fandom and motives. If you are someone with deep pockets, you have to be very careful of public statements that seem to go beyond opinion.
Gene: This has been a lot of fun, Steph. I’d like to conclude by contrasting you and Clipper Darrell with a different class of super fans — the literary and dramatic property fanatics. Those writers of Harry/Draco slash fiction, those trekkies making fan videos with production values superior to the original series, they’re all copyright infringers. With its statutory damages and presumption in favor of fee shifting, copyright law is VERY plaintiff-friendly.
Yet (in contrast to the Clippers) you don’t see Scholastic or Paramount lawyering-up against their fans. The difference may be one of ownership and management. Whatever tooljobs inhabit the publisher and studio boardrooms aren’t sociopathic enough to act against the interests of their firms.
Steph: The Yahoo Sports! article ends with this (rhetorical?) question from Clipper Darrell, “Can you still love a team and hate the organization?”
The answer is yes. Happens a lot. I think the old diehard Houston Oiler fans know the answer to that question. Some Cowboy fans know that feeling too, either dating back to Tom Landry’s firing and/or more recently with frustrations over their GM structure.
There’s a lot of muddled facts with this situation, but from what is known publicly, there is little to like about how the Clippers dealt with the situation. I truly hope they can find an accommodation that suits both Clipper Darrell and the organization. Not sure if they will be able to.
Though Gene and I have discussed this topic some, I’d like for others to share their experiences. I am sure that there are a number of fans that have encountered over-enthusiastic, nasty letters from team attorneys. And some who have received firm but kind letters from teams. I’d like to continue this dialogue.