Can Flavor Flav Sue The Sanders Campaign For Promoting a “Public Enemy” Performance?

If you’ve followed my Twitter account or heard my interview on NPR’s Morning Edition, you know I’m a huge supporter of Senator Bernie Sanders. Sanders is what happens when a genuine, on-the-ground activist and organizer somehow manages to get real institutional power, without compromising their values. This has probably never happened in modern U.S. politics, and it’s terrifying not only to the very wealthy, but also to the status-quo-dependent subclass of political consultants, lobbyists, lawyers, pundits, pollsters, and politicians whose livelihoods he threatens.

We live in a time when we’re seeing many radical icons who were active between the 50s and the 80s, including Dolores Huerta, John Lewis, and most recently Jello Biafra of Dead Kennedys, soften and become moderate, corporate-leaning Democrats whose politics are to right of the average 30 year-old Democratic voter.

This is why for me and many other leftists, it came as a great relief when we saw the below promotional poster for a Bernie Sanders/Public Enemy concert happening today in California. Public Enemy, perhaps the single most important anti-establishment entity in hip hop, has not sold out their less fortunate contemporaries, nor all of us who entered the workforce around or after the crash of 2008 and generally do not see the Obama administration as a utopian ideal that we need to return to.

Public Enemy and Bernie Sanders are two examples of older-generation activists who still believe the system needs profound change and have not grown complacent as they’ve gotten older and wealthier, and for young people like me who are still working to find our footing in an increasingly unstable landscape, this gives us some hope that things might get better.

With that said, who or what is Public Enemy? And who decides who counts as Public Enemy? According to frontman Chuck D and the Sanders campaign, Public Enemy can be Chuck D performing by himself, with no other performers known to be the group. According to Flavor Flav, the group’s hype man who achieved individual fame as a reality TV star in the 2000s, Public Enemy is only Public Enemy if it includes him and the other members who aren’t Chuck D, leading Flav to send a cease-and-desist letter to the Sanders campaign.

Who’s right? As a trademark attorney who works for a lot of bands and musicians, I can help answer this question. Fortunately, we don’t really have to look into the complicated history of the group and how it got its name; we just have to look at the U.S. trademark registration for “Public Enemy.”

Yes, technically the band performing was a separate project of Chuck D’s called Public Enemy Radio, which has some members who aren’t in Public Enemy, but this is immaterial because the two band names are nearly identical under trademark law, and the word “Radio” was so small in the promotional poster that most people probably didn’t even see it. So we’re going to focus on ownership of the name “Public Enemy.”

In music law, whatever person or entity owns the trademark is the band if they say they are, because the band is simply a source identifier — in other words, a brand — for music and musical performances, and whoever owns the brand controls who can present themselves as that brand. This is why one of my clients is 1980s dance duo The Weather Girls, still active and performing in German dance clubs today despite neither original member still being in the group.

In the case of Public Enemy, we have a very straightforward answer to the question of who owns the name.

Carlton Ridenhour, also known as Chuck D, owns Public Enemy, which means that he can say who is and who isn’t Public Enemy. The Sanders campaign is in compliance with U.S. trademark law and should ignore Flavor Flav’s cease-and-desist letter. I believe a judge would throw this case out quickly if it went to court. If Flavor Flav feels strongly about this issue, he should challenge Chuck D and his trademark registration directly, not the Sanders campaign.