Dischord & Minor Threat v. Nike

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In this corner — Dischord Records and Minor Threat

For you kids who might not remember, Minor Threat was the spring from which all of the Washington D.C. punk rock scene flowed, the “godfathers of the straight-edge punk movement of the early 1980’s” (source) and its leader/front man Ian MacKaye is also the driving force behind Dischord records, which gave us (in addition to Minor Threat) punk classic bands like Dag Nasty, Government Issue, Youth Brigade, the foundational Teen Idles. Of course, Dischord’s flagship band since 1987 has been Fugazi, MacKaye’s most well-known project (which is unfortunately on hiatus).

Dischord has, at least in my eyes, never been only about awesome music. MacKaye’s label and especially his projects have been about the DIY (Do It Yourself) anti-consumerist philosophy.

The DIY punk ethic can also extend to how any group or individual applies DIY political stances to daily life—especially how they avoid contributing to institutions they see as exploitative. These efforts include converting cars to run on biodiesel or vegetable oil, learning bicycle repair, sewing/repairing/modifying clothing, starting gardens, dumpster diving, etc. DIY is sometimes simply a way of finding ad hoc solutions to problems that are otherwise usually solved with wealth or corporate support. Often though DIY involves a more sustained learning experience which seeks to replace the means for producing goods and services traditionally sought in a money economy to a more permanent extent. Thus DIY is in a broad sense an economic model. Skill sharing is a central aspect of DIY culture and practice. (source)

In addition, MacKaye has eschewed the potential profits that could be made from merchandising. Despite the fact that Fugazi could probably garner serious profits if MacKaye set this ethic aside, there are no Fugazi t-shirts, music videos, or posters (at least none sanctioned by the band).

“People have always tried to make money off music,” MacKaye says. “The difference today is that now business people are trying to make the money instead of just the rock-and-rollers. The industry used to be staffed by people who loved music. Now it doesn’t make a difference what the product is, it’s all about maximizing profits. (source)

With these as the words of Minor Threat’s founder, and Dischord’s founder and CEO, imagine the surprise when the MAJOR THREAT ad began running.

And in this corner… Nike

I’m not a Nike-Hater per se. Nevertheless, it won’t take too many words to shine a light on the contrast between Dischord and Nike. Nike is the quintessential capitalist organization. Nike slaps a logo on everything they can find, maximizes its profits by any means necessary (cough, sweatshop, cough cough), and is the quintessential “corporate sponsor megastar” corporation. Whether you love corporate branding and globalization or you hate it, even Nike would admit, or even brag, that they are to globalization what Dischord is to D.I.Y. and anti-consumerism.

So WTF?

In its drive to slap a label on everything (for good or for evil), Nike launched a skateboarding tour called “Major Threat.” Nike apparently has a very lazy marketing department and/or really stupid lawyers. There is neither question nor argument that Nike ripped off the Minor Threat album cover. And, in a world where Iggy Pop’s “Lust for Life” has been co-opted by Carnival Cruise Lines (oh that just makes me want to drive an icepick into my ear every time I see that commercial), one might think that Ian MacKaye finally decided that “a man’s gotta eat,” and sold out.

This statement, which *was* on the Dischord website dispels that notion.

To longtime fans and supporters of Minor Threat and Dischord this must seem like just another familiar example of mainstream corporations attempting to assimilate underground culture to turn a buck. However it is more disheartening to us to think that Nike may be successful in using this imagery to fool kids, just beginning to becoming familiar with skate culture, underground music and DIY ideals, into thinking that the general ethos of this label, and Minor Threat in particular, can somehow be linked to Nike’s mission

Apparently, Nike meant no harm and issued an apology. (link here, and if it comes down, Scan Here)

Minor Threat’s music and iconographic album cover have been an inspiration to countless skateboarders since the album came out in 1984. And for members of the Nike Skateboarding staff, this is no different. Because of the album’s strong imagery and because our East Coast tour ends in Washington, DC, we felt that it was a perfect fit. This was a poor judgment call and should not have been executed without consulting Minor Threat and Dischord Records.

Every effort has been made to remove and dispose of all flyers (both print and digital). Again, Nike Skateboarding sincerely apologizes to Minor Threat and Dischord Records.

Hmmm

If you click the thumbnail image, it will give you a really big side-by-side of the two works.

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Play “find the DC Hardcore Imagery!” Of course, the cover itself is the 1 point answer. But, on the right the XXX is meant to invoke the “double X” that MacKaye is identified with. That comes from the fact that MacKaye insists that all his shows be open to all ages. Doormen typically placed the XX on the hands of the kids to keep them from the bar. After a while, that began to be a sign of pride for the “straight edge” movement. The XXX is above two bands, which is a play on the District of Columbia flag. Of course, the wording underneath that, where it says “MAJOR THREAT” is a direct ripoff of a Minor Threat logo.

The Nike ad, ever so cutely, changes the skinhead from wearing ill-fitting thrift store clothes and old combat boots to a wearing nice jeans, Nike shoes, and what appears to be a tracksuit top. The backpack in the corner of the original is now a Nike skateboard. Consider it to be “Skinhead Makeover.”


Okay, so umbrage aside… did Nike really do anything wrong?

I think yes, but I don’t think we can jump to yes all that easily and certainly not without putting some thought into it. (Not a lot, but put some into it).

As a trademark infringement, the answer is pretty clear. There was a high probability of consumer confusion. Minor Threat is popular among those who skate — or at least among those who used to skate but now they are too old and they might fall down and break a hip. It certainly confused me the first time I saw it.

As an example of copyright infringement, the answer is not as clear. If you go through the four “fair use” factors, I still think you come down to infringement, given the commercial purpose of Nike’s use. Just for fun though, lets turn the facts a few degrees and look at the two works side by side (removing the commercial element of the second). What if an artist simply wished to parody the Dischord DIY ethos and the second work was created to mock the DIY ethos and Minor Threat?

I could see a fair use argument passing muster in that instance. Hmmm, maybe I will make that a hypothetical for my copyright law class to consider.

Of course, that is nothing more than academic mental masturbation since the purpose and character of the use is clear — to sell more Nike products.

In an age when “Green Day” is considered to be a punk rock band (INSYNC with eyebrow rings is more like it) and pretty much everyone except Ian MacKaye is for sale, it is easy to see how some kid in Nike’s marketing department might have thought that this would be really cool. There is nothing wrong with paying tribute. (Check this out). Nevertheless, this went beyond “paying tribute” and skated right into trademark infringement and copyright infringement.

Thank goodness that MacKaye is still sticking to his guns. Someone has to inspire us.

Picture me giving the finger to Iggy Pop (and Elvis Costello) right now.

6 Responses to Dischord & Minor Threat v. Nike

  1. I remember the uproar from the “indie” scene when this happened. Not a very smart way to establish street cred for your skating shoes. It does bring up an interesting phenomenon though – a lot of the kids that lived through the golden era of Dischord, SST, and the other indie/mailorder labels (before they were bought up) are now ad execs. A lot of (formerly) independent music is brought to the masses in commercials. The Concretes in Target ads, Luna and Nick Drake in VW ads, Modest Mouse for Nissan, Cat Power/Chan Marshall in a diamond ad, and the list goes on. The (s)hit show “Dawson’s Creek” also had a very good mix of indie songs playing in the background. What better way to open up the angst-ridden heart of a high-school cheerleader than introducing her to Death Cab for Cutie?

    As far as your exam hypo – I’ve always thought this would make a GREAT exam essay or intro to originality:

    Bill Diodato Photography, LLC v. Kate Spade, LLC, 388 F.Supp.2d 382 (S.D.N.Y. 2005)

    I have the exhibits and complaint from PACER if you’re interested…

    I thought it was kind of interesting that the “indie” or “counterculture” scene has no qualms about spoofing corporate America — but when corporate America spoofs counterculture, there is an uproar. Granted, I see the difference between the two acts, and I’m not aware of any MacKaye projects that spoofed anyone (Ian is way too creative for that), but I’m just sayin…

    -MJR

  2. Mr Furious says:

    When the counterclture scene apes corporate culture, it’s to make a statement and should be looked at as speech. When Nike does it back, it’s to make money.

    Just one man’s opinion.

    (That’s a great album, BTW)

    You do have a good point there. I guess I am a little uncomfortable with lumping MacKaye in with all “counterculture,” but… the “counterculturists” (myself included) certainly shrieked a little louder at this than we did at (for example) Gang Green’s Budweiser rip-off.

    -MJR

  3. [...] Hope no one told the investors about the whole, “free from popular opinion” stuff – whatever. Also, I hope for their own sakes that Dischord is cool with the intro… [...]

  4. [...] of you may remember a similar 2007 t-shirt dispute between Minor Threat and Nike. Sphere: Related Content Permalink|Comments RSS Feed – Post a [...]

  5. Rush says:

    Straight edge changes your life shows you the reasons in yourself why you use to or did fail and can help you change into a positive american dream. Straight edge means I’m better than you and I can prove it but I formed sumthing even better called the SClan. A straight edge gruop to elminate five thing drinking,smoking,drugs,careless sex, and racism. Were not afraid to be ridaculed demorilised because were better than any of them and we can all change the world thu music,violence, and drawing an x on your hand and not giving a f@$k what anyone says.

  6. [...] thought it was shitty that a big corporation was getting involved in their sport. Ian Mackaye even sued them for their Minor Threat parody [...]

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