Special thanks to EFF legal intern Jack Beck, who was the lead author of this post.
Amid heavy criticism for its ties to weapons manufacturers supplying Israel, South by Southwest—the organizer of an annual conference and music festival in Austin—has been on the defensive. One tool in their arsenal: bogus trademark and copyright claims against local advocacy group Austin for Palestine Coalition.
The Austin for Palestine Coalition has been a major source of momentum behind recent anti-SXSW protests. Their efforts have included organizing rallies outside festival stages and hosting an alternative music festival in solidarity with Palestine. They have also created social media posts explaining the controversy, criticizing SXSW, and calling on readers to email SXSW with demands for action. The group’s posts include graphics that modify SXSW’s arrow logo to add blood-stained fighter jets. Other images incorporate patterns evoking SXSW marketing materials overlaid with imagery like a bomb or a bleeding dove.
One of Austin for Palestine's graphics
Days after the posts went up, SXSW sent a cease-and-desist letter to Austin for Palestine, accusing them of trademark and copyright infringement and demanding they take down the posts. Austin for Palestine later received an email from Instagram indicating that SXSW had reported the post for violating their trademark rights.
We responded to SXSW on Austin for Palestine’s behalf, explaining that their claims are completely unsupported by the law and demanding they retract them.
The law is clear on this point. The First Amendment protects your right to make a political statement using trademark parodies, whether or not the trademark owner likes it. That’s why trademark law applies a different standard (the “Rogers test”) to infringement claims involving expressive works. The Rogers test is a crucial defense against takedowns like these, and it clearly applies here. Even without Rogers’ extra protections, SXSW’s trademark claim would be bogus: Trademark law is about preventing consumer confusion, and no reasonable consumer would see Austin for Palestine’s posts and infer they were created or endorsed by SXSW.
SXSW’s copyright claims are just as groundless. Basic symbols like their arrow logo are not copyrightable. Moreover, even if SXSW meant to challenge Austin for Palestine’s mimicking of their promotional material—and it’s questionable whether that is copyrightable as well—the posts are a clear example of non-infringing fair use. In a fair use analysis, courts conduct a four-part analysis, and each of those four factors here either favors Austin for Palestine or is at worst neutral. Most importantly, it’s clear that the critical message conveyed by Austin for Palestine’s use is entirely different from the original purpose of these marketing materials, and the only injury to SXSW is reputational—which is not a cognizable copyright injury.
SXSW has yet to respond to our letter. EFF has defended against bogus copyright and trademark claims in the past, and SXSW’s attempted takedown feels especially egregious considering the nature of Austin for Palestine’s advocacy. Austin for Palestine used SXSW’s iconography to make a political point about the festival itself, and neither trademark nor copyright is a free pass to shut down criticism. As an organization that “dedicates itself to helping creative people achieve their goals,” SXSW should know better.
Welcome to your U.S. presidential election year, when all kinds of bad actors will flood the internet with election-related disinformation and misinformation aimed at swaying or suppressing your vote in November.
So… what’re you going to do about it?
As EFF’s Corynne McSherry wrote in 2020, online election disinformation is a problem that has had real consequences in the U.S. and all over the world—it has been correlated to ethnic violence in Myanmar and India and to Kenya’s 2017 elections, among other events. Still, election misinformation and disinformation continue to proliferate online and off.
That being said, regulation is not typically an effective or human rights-respecting way to address election misinformation. Even well-meaning efforts to control election misinformation through regulation inevitably end up silencing a range of dissenting voices and hindering the ability to challenge ingrained systems of oppression. Indeed, any content regulation must be scrutinized to avoid inadvertently affecting meaningful expression: Is the approach narrowly tailored or a categorical ban? Does it empower users? Is it transparent? Is it consistent with human rights principles?
While platforms and regulators struggle to get it right, internet users must be vigilant about checking the election information they receive for accuracy. There is help. Nonprofit journalism organization ProPublica published a handy guide about how to tell if what you’re reading is accurate or “fake news.” The International Federation of Library Associations and Institutions infographic on How to Spot Fake News is a quick and easy-to-read reference you can share with friends:
To make sure you’re getting good information about how your election is being conducted, check in with trusted sources including your state’s Secretary of State, Common Cause, and other nonpartisan voter protection groups, or call or text 866-OUR-VOTE (866-687-8683) to speak with a trained election protection volunteer.
And if you see something, say something: You can report election disinformation at https://reportdisinfo.org/, a project of the Common Cause Education Fund.
EFF also offers some election-year food for thought:
An effective democracy requires an informed public and participating in a democracy is a responsibility that requires work. Online platforms have a long way to go in providing the tools users need to discern legitimate sources from fake news. In the meantime, it’s on each of us. Don’t let anyone lie, cheat, or scare you away from making the most informed decision for your community at the ballot box.