Rebecca Tushnet, a Harvard law professor specializing in First Amendment law, said getting rid of the Rogers test would be “a threat to anyone who publishes anything” and would give major brands an incentive to sue any time their products are portrayed negatively.
“If you want movie villains to wear completely blurred out clothes and move around in a cloud, then that’s where you are without Rogers,” Tushnet said.
It’s also not as straightforward as the MPA made it seem, Tushnet said. When they tried to distinguish the dog toy as a commercial product separate from their movies, she said they neglected to mention things like DVDs or merchandise they sell as well.
How the Supreme Court handles the Rogers test could have wide-ranging implications, according to Mark Perry, the co-head of the appeals and strategic counseling practice at Weil, Gotshal & Manges LLP. Perry noted that the justices could look at the fact that the dog toy in question was a parody and avoid the larger questions of the Rogers test.
“We have an incrementalist court, for the most part, and the question is how much do they want to take on in this case? There are ways to decide the case without going right at Rogers,” he said.
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March 21, 2023 at 10:00PM
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Supreme Court to hear case on 'Bad Spaniels' v. Jack Daniel's - Roll Call
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