“Pro wrestler-turned-yoga guru” Diamond Dallas Page is suing Jay-Z for trademark and copyright infringement over the use of the “Diamond Cutter” hand symbol. This is the type of story, sent to me last week by my buddy Matt, that made me want to become a lawyer.
After discussing this case with my boss (a real productive use of time), this is probably not going to end well for the world’s foremost pro wrestler/yoga guru, but it’s not as crazy of a case as it looks at face value.
Regarding the copyright infringement allegation, artistic expressions are one of the main areas that the Copyright Act intends to protect. I know what you’re thinking… how can a hand gesture be an artistic expression? Well, think of it this way – at Juilliard, the world’s preeminent fine arts school, students can study music, drama, and, most importantly for the purposes of this case, dance. It is well established that a choreographed work, which at its core is body movement, is artistic expression and copyrightable as long as it is in a tangible medium (i.e. a live performance is recorded on tape). As a result, it’s not too far of a stretch that a hand gesture might fall under this category.
However, it may be difficult to show that a short hand gesture meets the copyright requirement of being the “fruits of intellectual labor” because of its brevity. For instance, short phrases or dance moves are not copyrightable. A hand gesture might be too short in its execution for anyone to be able to claim a copyright.
The problem for Diamond Dallas Page is that the copyright infringement allegation is probably the stronger of the two claims. The brevity of the hand gesture doesn’t matter in a trademark infringement claim, but proving confusion is an essential element.
From the article, it looks like Diamond Dallas is basing his trademark infringement argument on that the public is being confused as to the source of the Diamond Cutter – Diamond Dallas’ attorney claims that people are starting believe that the pro wrestler/yoga guru borrowed it from Jay-Z instead of the other way around. However, this really isn’t the intent of the confusion test. Instead, a court would probably focus on whether Jay-Z is trying to confuse the public by using the Diamond Cutter in order to pass himself off as Diamond Dallas or benefit from the association economically with Diamond Dallas. Based on the minimal facts that are in the article, both of those scenarios would be extremely hard for the pro wrestler/yoga guru to prove.
P.S. If this goes to trial, could you imagine the showdown between Diamond Dallas’ entourage and Jay-Z’s posse in the courtroom? Court TV needs to show every moment of this trial.
P.P.S. On another Jay-Z note from Matt, I’ll be looking for my 2003 Mitchell & Ness Jay-Z retirement jersey under the tree next week. This will go right next to my 1998 Michael Jordan and 2003 Roger Clemens jerseys.