SMU Law Review


The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used in third-party artistic works, the situation often results in trademark owners gearing up to protect their marks and artists invoking their First Amendment rights to protect their creations.

NFTs have become an extremely lucrative market, presenting a new route for artists to explore their creative ideas and an appealing business opportunity for luxury brands to enter into a unique space. Courts and practitioners must focus their attention on the rise of NFTs and trademark-related issues as litigation gradually increases. There has been a longstanding precedent formed by Rogers v. Grimaldi that gives courts some guidance on how to balance First Amendment protections and trademark rights, but with the introduction of NFTs, circuit courts are interpreting and applying the Rogers test in various ways resulting in inconsistent outcomes. This calls for another look at the Rogers test and a reconsideration of its design to balance First Amendment and trademark interests.

This Article examines the nuances of First Amendment and trademark law to determine the effectiveness of the traditional Rogers test. This Article concludes that while courts have applied Rogers in unique ways, the emergence of NFTs requires a uniform approach that can only be accomplished by reconsidering Rogers’s application to the digital world. This Article encourages courts to include a more fact-intensive analysis in Rogers cases so fact finders can distinguish between expressive artistic works and ordinary consumer products while discerning the works’ true motives.

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Digital Object Identifier (DOI)