Skin in the Game: Providing Redress for American Sports' Appropriation of Native American Iconography

Abstract

To date, legal efforts to eradicate the use of Native American iconography in American sports have focused on the concept of Indian nicknames as disparaging terms and Indian mascots as harmful images. But subjective claims of harm are hard to prove and are often thwarted by First Amendment protections because judges remain reluctant to regulate expressive and commercial freedom of speech based on offense. And while a 2014 ruling by the United States Patent and Trademark Office’s Trademark Trial and Appeal Board cancelling six of the Washington Redskins’ trademark registrations was a landmark moment for name-change advocates, the decision could be overturned on appeal. This paper outlines a different approach in exploring the legal validity of American Indian sports nicknames and mascots by examining trademark, copyright, and right of publicity laws that govern the appropriation of personal and brand identity. While the commercial use of one's identity is protected under right of publicity laws, this legal principle is rarely evoked in legal petitions brought by activists, resolutions encouraged by legislators, or by the many scholars who agree on the harmful effects of cultural misappropriation. Based on my case study of the Chicago Blackhawks, an NHL team using the moniker of a legendary Indian chief, I offer a proposal that uses existing right of publicity law to challenge the unfettered appropriation of Native American indicia of identity.