Bill Lee, Non-Trademark Use, and Bonus Video of Eephus Pitch

bill lee sports illustrated

sporting times bill lee

Bill Lee was a left-handed pitcher, most notably for the Red Sox during the 70’s, at a time when left-handers were the target of unthinking prejudice. As a fellow-left-hander, I always had a soft spot for him after his quote that left-handers are the only one in the their right minds (brain hemisphere dominance joke).

Also – Bill Lee threw an eephus pitch which he referred to as his Leephus pitch. This history of the eephus refers to Lee but does not explain the name. (See video of greatest eephus pitches below)

In any event, Bill Lee was ‘colorful,’ which was a euphemism in those days for ‘takes drugs.’ He was known as the Spaceman and posed for Sports Illustrated wearing a spacesuit (See above).

Defendant released a biopic about Lee last year. The ‘he’s becoming famous montage’ depicts a recreation of the spacesuit photo on the cover of a fictitious magazine named SPORTING TIMES (See above). The cover appears for nine seconds in the movie and for two seconds in the trailer.

Owner of SPORTING TIMES registration protested, and defendant removed some but not all usages. Owner sues. Defendant moves to dismiss.

Held: Use of a name to denote a cover in a movie is not trademark use. To my mind there is a little muddiness in the decision in that the court states both that it is not plausible that the audience will perceive the name as a source of origin (which is a prerequisite for the confusion analysis), and that it is not plausible that the audience will perceive the name as indicating affiliation with the source of the film, which in my view, is the confusion analysis itself). Both conclusions seem true.

Also – as an alternative theory, use of the name passes the “Fred and Ginger” artistic relevance test so the use is protected First Amendment speech.

Apparently, Bill Lee lives in Vermont and ran for political office using the slogan “So Far Left, We’re Right.”

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