"Sir, there's an angry mob here to see you."
"Do they have an appointment?"
Sheesh, who knew there would be so many Saints fans there to shake my hand and share the land that they'll be giving away when we all live together? Talkin' 'bout together now. By golly, it's a fuckin' brotherhood of man! And here I am with nary a fleur to put in my hair. Perhaps I'll stop by the Free Store and pick up a handful on the way to the protest march.
I thought long and hard about whether or not to even post about all this silliness. I mean sure, the opportunity to occasionally piss some people off is one of the more enjoyable fringe benefits of being a jackass with a blog. But pissing everyone off? All at once? That there could be bad for bidness, and I'm not sure I have the stomach for it. Fortunately for me, Varg over at the Chicory went ahead and got the ball rolling on it a couple days ago, and not having to be out there on my own has me feeling all emboldened and embiggened. Thanks, Varg.
Let's start by establishing a few things. As always, you're free to disagree. First of all, can we quit acting like this is about French history, or the Soul of the City, or NOLA culture, or Power to the People, or any of these other grand concepts people have been applying to it?
For crying out loud, this is about a tee shirt. A fuckin' Hanes Beefy Tee with a slogan and a symbol slapped on it and being sold at a 100% markup. We ain't exactly talking about civil rights here or anything. A little perspective here please?
In case you were genuinely worried about it, rest assured that the NFL isn't about to demand that the city change its flag, or that the Boy Scouts change their logo, or that people stop chanting "Who Dat" or pay a royalty any time they do, or anything like that. That kind of hyperbole is good for a chuckle, but it also obfuscates the true nature of the dispute.
Allen Iverson: Really. We talkin' 'bout a tee shirt. A tee shirt!
Indeed. I mean, seriously. I find it utterly ridiculous that this even got to be a big deal in the first place. Even more ridiculous is my continued underestimation of people's capacity (and affinity) for righteous outrage.
I'm not going to dispute the prevailing opinion that "Who Dat belongs to THE PEOPLE!!!" I mean, nevermind the fact that it's been trademarked at least twice by two different parties. Let's just take it as a given that nobody should be able to "own" the phrase. Let's also acknowledge that there are a metric shitload of different fleur designs, and the Saints own the trademark on precisely one of them. Fine, conceded.
But can we talk about "the spirit of the law" for a damn second? Does anybody out there really want to assert that Fleurty Girl isn't trading on the Saints brand? Does anybody really want to assert that there are more than about three people who would give two shits about these shirts if it weren't for the Saints?
That's the issue. How about instead of myopically focusing on the esoterica of whether or not each individual element of the design is or isn't owned by the NFL, we employ a little common sense here? Fleurty Girl wasn't selling "black tee shirts" or "Who Dat tee shirts" or "fleur tee shirts." They were selling Saints tee shirts. If it weren't for "Saints fever" they'd have sold about three of 'em. Actually, they probably wouldn't have sold any of 'em, because they'd never have produced 'em in the first place. The shirts are only marketable because they're riding the coattails of an established commercial brand.
Where I come from, we call merchandise like that "knockoffs." If they were being produced in a sweatshop in Thailand instead of the back room of a little storefront on Oak St, people would be a lot more willing to call them what they are.
But Lauren Thom looks like she's probably a sweet lady, and surely she means no harm. She's just trying to earn a living, right? And it's real easy to get caught up in the blue-collar righteousness when the Big Bad Greedy Billionaire Assholes are perceived as coming down on the sweet little local mom & pop shop owner. In the court of public opinion, it's not even a fair fight. After all, can't the big meanies leave a few crumbs for the little guy? How much money does the NFL need anyway???
Let me give you my own personal answer to that question: "Every fuckin' penny I've got coming to me. And, no, I'm not sorry."
Lemme axe you something. (Ooh, see what I did there? I totally disarmed you with my local flavor.) Let's say I set up shop down the street and put up a "Fleur T-Boy" sign and start selling shirts with a graphic on 'em that looks like you're wearing a bra over your shirt, and the word "Kenna" like it's tattooed on your chest just above your tits. How many fuckin' microseconds do you think it'd be before Lauren Thom is sending me a cease and desist?
Hey, she's selling 100 of hers a week and I'm lucky if I sell 3. Who's the big bad meanie now? See how that works both ways? "NOBODY OWNS KENNABRAH, man! That's part of da cultcha! And so is the fleur, as we've already established, and so is T-Boy (although I'm still not really sure why.)"
It's business, people. Commerce. It isn't always warm & fuzzy. And Fleurty Girl is every bit as engaged in it as the NFL is.
But hey, let's not let that stand in the way of our opportunity to second line down Tchoupitoulas with our torches and pitchforks. I'm sure Mary, Melancon and Vitty Cent would be happy to lead the way. After all, if that's the way the wind's blowing…. Boy, sure didn't see those responses coming from our esteemed leaders. Yeah, geaux Vitty! Way to stick it to The Man! Guh.
And you've got the media pandering just as transparently as the politicians. First, neworleans dot com (to whom I refuse to link) quite pointedly includes a quote from Sal Monistere (who, incidentally, also claims ownership of "Who Dat" but is, you know, really cool about it and all) waxing populist about how the Big Bad NFL is trying to extort "this guy's grocery money." (We'll pause here for a few seconds while the tears flow. Okay, you alright there? Ready to continue?)
Incidentally, if you take Monistere's word for it, and I have no reason not to, evidently the league is "attempting to force him to pay the NFL 10 percent of the little bit of money he’s made…" Let's stop here for a second. Ten percent? Not off the top, but off net profit? REALLY? THAT'S ALL??? A fucking dime on the dollar? And people are bitching? Holy shit, people ought to be jumping all over that rather than crying about it. The league is responsible for about 90% of your product's marketability and all they want is 10%? Good lord, that's downright charitable!
Anyway, back to the pandering. Then you've got the T-P spinning the NFL's clarification of their position as some kind of win for the "Who Dat Nation" on the baseless premise that public outrage and/or Vitty's shirtless chest-beating stuck it to The Man and "made the league back down."
Couldn't be that the league's position was reasonable all along, and the Who Dat Nation just got carried away with their emotional kneejerk reaction. Couldn't be that the league's statement might as well just have said "Easy there, cowboys. Think you might calm the fuck down for a half a second? For fuck's sake, we're not trying to appropriate your culture. We're not trying to put anybody out of business or sue anybody into bankruptcy. That's kinda what a cease & desist is for in the first place, to avoid an ugly litigation. We don't care if you shout 'Who Dat' to your heart's content. Just quit making bootleg merchandise and trading on our fuckin' brand, okay? Think you can handle that?"
Nah, couldn't be that. Clearly the Who Dat Nation rose up and gave the Big Bad Greedy Billionaire Assholes the what-for, and showed 'em that they fucked with the wrong people. Right? Hell yeah! Miniature American flags for everyone!!!
Sigh. It's just so mindbogglingly stupid. Hey, how about this? Just stop selling the fuckin' shirts. Which is evidently what the merchants have decided to do. But not before tag-teaming with the local media to whip the masses into a frenzy of righteous outrage. One hand washes the other, everybody wins. Ah, capitalism. When we do it, it's great!
But hey, in the end, it all worked out, right? After all, apparently Fleurty Girl is gonna be able to sell "Who Dat" merchandise til the cows come home, now that they've struck a licensing agreement with Sal "Who Dat transcends the Saints, Who Dat transcends football" Monistere.
Yeah, the Saints really are little more than a bit player in the whole Who Dat phenomenon. Really, it's always been more about Sal Monistere all along. I can't believe I've been so mistaken on that for all this time.
But hey, maybe the NFL would have come out of this smelling a little better if only they hadn't been such bullying jerks about it. Maybe a little something more along these lines:
Dear Lauren,
S'up girl? It's the Rog. How's ya mom 'n' 'em? Look, I hate to get all proprietary on you and junk. Don't be mad, okay? But I'm gonna have to go ahead and ask you to do me a favor and discontinue that there shirt. Hey, I think it's cute as hell. But the thing is, Reebok is totally being a pain in the ass about it, you know, what with the fact that they paid us like 400 billion dollars for the exclusive merchandising contract and stuff. I know, I know. It's just that it's a lot of money, you know? Anyway, if you wouldn't mind, I'd totally be your BFF if you could help me out here. I owe you dinner, okay? Preciate it big time.
Yeah, because that kind of thing would totally be taken seriously. Hey, that's how Sal would talk to ya. Because he's totally cool about it. Unlike those assholes in New York City.
Now, here's where moosedenied comes in and saves the day. We're 1750 words into this steaming pile of contrarian rambling. And if you've trudged through the whole thing, I'm betting you're probably to the point where you just don't give a shit anymore about any of it. Am I right?
You're welcome.
It's a fuckin' tee shirt.
"I don't give a shit" is where you should have been on this thing all along. Happy to help.
So, are pink whodat shirts okay, according to the NFL letter? No matter what side of the issue you fall on, Fleurty girl got a heck of a lot of free advertising out of the hullabaloo (tm – Tulane).
I’m going to present a couple of different cynics’ views here:
1) Fleurty Girl is paying next to nil to receive a metric shitload of free publicity of this. I don’t know if this is by clever scheme or by sheer happenstance, but dammit if 90% of the Gulf South doesn’t know about her shop, now. And it cost her nothing more than 10% of her profits on what, a few dozen t-shirts she had in stock?
Nicely done. Talk about making chicken salad out of chicken shit.
2) A friend (who happens to be a lawyer) pointed out recently, on a message board, that it is entirely possible that the NFL’s original communication attempted to cast as wide and broad a net as possible, in seeking to “protect their trademark(s)”…and simply backed off when they were called out on it.
Obviously I’m not privy to the original letter sent by the league to Ms. Thom, but I suspect there could be some legitimacy to this theory, based on the way intellectual property legal types tend to act in such cases.
Either way, Fleurty Girl comes out of all of this making off like a bandit, smelling like a rose, and all those other similes which say “she done good, in spite of the bullshit”.
Honestly, I get it. I get the trademark issue and how she’s making out like a bandit and all that. I get it, I do.
What sent me off the deep end was their quote about protecting the little people from being “misled” into believing they were buying official licensed Saints merchandise. Don’t you (or at least most people) know you’re buying a knock-off when you buy a knock-off? Aren’t you usually intentionally buying a knock-off for whatever reason – cost, supporting local merchandisers, sticking it to the man, or whatever other reason you come up with?
The idea that people are stupid, easily misled, and need someone to drive them to the corporate machine’s saving grace is what ticks me off. Even if it is, in part, true. You can’t expect to say it like that and not have people get pissed. If they’d left out “misled,” maybe they’d get a pass. Probably not, but maybe.
Michelle makes a point about people intentionally buying the “knock off” t-shirts.
And I concede that Wang makes a damn good argument throughout this whole thing. Maybe there’s a way the t-shirt folk could pony up, say, a 10 percent licensing fee to the NFL, and in exchange the merchandisers would be allowed to use the team name on those shirts, but couldn’t use words like “NFL” or “Super Bowl” on them?
And can I just add that “embiggened” is a perfectly crumulent word?
Sorry, but if you’re looking at the law, the entire bulk of your polemic here misses the point. The NFL never, ever had a right to stick their noses into this in the first place with Storyville and Fleurty Girl. The fight was either between them and the Monisteres OR the Monisteres and the merchants.
The trademark infringement test is two-pronged: 1) association with trademark and 2) first commercial use of the phrase. The NFL passes prong one, but fails prong two. Thus, no dice. Not to mention the fact that the suit the Monisteres brought against a competitor in 1983 resulted in a ruling that the phrase, even when combined with Saints colors or symbology, is public domain. That case also establishes that the NFL was not the first commercial user of the phrase.
I’m almost done with my law degree here, so maybe I’m still too focused on “the rules” and “applying them properly” to see the “spirit” of the NFL’s argument. But as far as I see it, as long as the Monisteres and the merchants have an agreement, the NFL has no place here. They bullied, they overreached, and most importantly, they misread the law. I know Commissioner Goodell’s economics degree from a middling liberal-arts school probably didn’t include a business-law class, so maybe that’s why. No one’s trying to scam anyone, the merchants aren’t taking any coin out of the NFL’s coffers, and this screed misses the point COMPLETELY.
That is a very poor analysis.
I don’t give a shit.
And if I were forced to give a shit for .5 seconds, I’d say that I don’t blame the NFL for doing that, nor do I blame Fleurty Girl for reacting the way they did (see Rick’s chicken salad out of chicken shit comment).
But I really, really don’t give a shit. If this happened in June, maybe I would, but not the fucking week before the Superbowl. Write about that soon or -rep:hihi:
Has anybody contributed to the site yet?