MSCHF et al Amicus 11 13 2023 Final

The importance of Rogers is especially profound given the unpredictability of the “likelihood of confusion” test for infringement and the complexity of adjudicating trademark cases. [...] SUMMARY OF ARGUMENT This case concerns the fundamental tension between the First Amendment right to free speech and the inherent speech-restrictive body of law that governs trademark and trademark protection. [...] Crucial to the court’s reasoning was the importance of free expression in a healthy society; the court wrote that “[a]t the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.” Hustler at 51. [...] The value of cultural commentary and critique transcends the bounds of specific media and clearly extends to Rothschild’s chosen medium of digital art. [...] This Court has the opportunity to go beyond paying mere lip service to the proposition that works of art deserve First Amendment protection and should clarify that scope of protection in applying the Rogers standard correctly to Rothschild’s works in this case.