Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 10
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June is Pride Month
By Kristyn Webb
June is Pride Month. This year we are celebrating with some IP tips for drag performers!
Drag performances involve men dressing in women’s clothing, or women wearing men’s clothing, often with exaggerated feminine or masculine features. The art of drag may be traced back to the days of William Shakespeare, when all roles, including those of female characters, were played onstage by men. In the US, drag performances can be traced back to 1896, when the Hamilton Lodge in Harlem, New York, began hosting its annual cross-dressing ball. Today, drag performances have become highly popular and have gained mainstream attention through popular shows such as RuPaul’s Drag Race.
Drag performers can protect their intellectual property by registering the copyrights in their original works of music, choreography, and comedy sketches. Performers also may seek to register their stage names as trademarks, as the famous Nina West did for music recordings and live performances, among other goods and services.
However, drag performers may face complications in protecting their intellectual property. Many aspects of drag performances are built on prior works, such as cover songs and parody songs. The performance of cover songs may be permitted by a venue’s public performance license. Parody songs may be a bit trickier, as the line between non-infringing parody and an unauthorized derivative work may be blurry at times. In addition, obtaining trademark registration for a stage name may pose issues as well because drag performers occasionally draw on and satirize existing third-party brands.
For example, when Nina West sought registration of her name NINA WEST as a trademark for tote bags, shirts, and jewelry pins, her application was opposed by the fashion brand ABG-Nine West on the basis that consumers would likely be confused with its NINE WEST brand for clothing and fashion accessories. Ultimately, Nina West deleted the disputed goods from her application, ABG-Nine West withdrew its opposition, and the USPTO registered the NINA WEST mark.
Drag performances test the limits of freedom of expression, fashion, and occasionally, intellectual property law. They are an important part of LGBTQ+ culture and American culture.
For readers in the Detroit area, tickets are still available for Catfight for the Crown, on June 14, 2024. In its fifth year, this event is an drag-style amateur beauty pageant with proceeds going to support the Ruth Ellis Center which services the needs of unhoused and at-risk LGBTQ+ youth.
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.
Published May 31, 2024
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