Who Should Be More Upset, the Alien or the Predator?

While buying a present for my son recently at a local surf-and-skate shop, I decided to check out the current crop of skateboard decks. For those not into skating (or who don’t have kids into skating), the underside of boards — you know, the part that no one will ever see if you are actually riding the board successfully — have striking graphics that are a big part of why you choose, and how much you pay for, a particular board. (Well that makes perfect sense — you’re welcome, fellow confused parents.)

One deck immediately stood out: a drawing of E.T. and Michael Jackson in an embrace, below the caption “Alien vs. Predator.”

The board is pretty hilarious, but also risky. Because I am a lawyer, and because lawyers must check their unfettered-by-legal-obsession senses of humor at the law school gate, I couldn’t help thinking about numerous potential legal claims that several plaintiffs might be able to bring.

To start with the low-hanging fruit, the board may infringe the copyright and trademark in the character E.T. The drawing is recognizably E.T., and the point is reinforced by the background of a pine forest and full moon, which evokes (and arguably infringes) one of the famous movie posters from the original release of E.T. the Extra-Terrestrial.

The board also may infringe Michael Jackson’s right of publicity. It’s a recognizable image of Michael being used to sell a product, which — barring mitigating circumstances/defenses, such as the First Amendment — is basically the textbook definition of a right of publicity violation. And as Michael was a California resident, that claim survives even though Michael has not.

A more interesting question is whether the board defames MJ (it can’t defame E.T., since he is not a real person, and really, let’s not blame the victim here). Put aside for a second the fact that in California you cannot defame a dead person. If the board was released when MJ was still alive and he had asserted a claim while alive, the claim could be pursued by his heirs. But is it defamatory? Presumably MJ is the “Predator” of Alien vs. Predator. [Ed. Note: Friendly reminder: only lawyers use “v.” Everyone else says “vs.”] That, and the image of the two embracing, suggest that Michael’s intent is to put a new twist on “boldly going where no man has gone before.” (And E.T. thought the anonymously evil government officials were scary…) But is it defamatory to suggest that someone is sexually interested in an alien (as opposed to just a non-human) species? While its unlikely that a court will answer that question any time soon, I think it probably is defamatory.

Finally, as my partner Aaron Moss noted recently, if a particular movie title acquires “secondary meaning,” the title may be protected under state and federal trademark law. The board’s title is of course a pun on the recent Alien vs. Predator movie. While trademark protection for movie titles is generally limited to movie franchises, given that the Alien and the Predator are each the stars of their own successful movie franchises, and that Alien vs. Predator was itself a(n embarrassingly successful) video game franchise before becoming a(nembarrassingly successful) film of the same name, Alien vs. Predator may be one of the rare instances where a tile can be trademarked.

To be clear, I have no idea if the makers of the “Alien vs. Predator” board obtained permission from all or any of the relevant parties. And, if they were regular readers of this blog, they would surely claim that they have valid defenses to all of the potential claims I’ve discussed, including parody and that the uses of MJ and E.T. are transformative. (Putting aside the defamation issue, several of the remaining legal questions can be mangled and condensed, only somewhat over-simplistically, more less as follows: are you buying the skateboard because (a) it has Michael Jackson and/or E.T. on it and/or you think that the fine folks who brought you AvP have suddenly developed brilliantly self-deprecating senses of humors, or (b) because it has amusingly cartoonish images of Michael Jackson and E.T. next to a clever/disturbing caption [which you would never assume was actually authorized by those self-serious AvP fellows]? Put that way, I rather like their chances, but with these things, you can never be sure.)

But on some level, I like to think that maybe skateboarder companies, like their customers, are rebels who just don’t care. There’s something comforting about living in a world where people still think that way. And, I suppose, it’s just that kind of thinking that keeps me in business. Now, if only E.T. could bring a claim for intentional infliction of emotional distress…

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