Policy

Who Dat Say Dey Gonna Sue My Shop?

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Songwriters cleverly avoid an NFL trademark suit with the old "the NFL hasn't been created yet" loophole.

A legal angle on the Super Bowl: The National Football League has claimed ownership of the phrase "Who Dat." The New Orleans Times-Picayune reports:

In letters sent to Fleurty Girl and Storyville, the NFL ordered the retailers to stop selling a host of merchandise that it says violates state and federal trademarks held by the New Orleans Saints.

Among the long list of things the NFL says is off-limits without a licensing agreement are some obvious violations like the official logo of the Saints and the team's name. But the one that stands out is "Who Dat."

Who knew?

The NFL, noting a 1988 trademark the Saints registered with the Louisiana secretary of state, says it has exclusive rights to the phrase and demands that the retailers stop selling it.

In theory, trademarks exist to prevent customer confusion. But a customer must be mighty confused indeed to believe the words "Who Dat" appear only on official Saints merchandise, no matter what went on in the Louisiana secretary of state's office two decades ago. For one thing, someone else registered the trademark in 1983, though he appears to have let it lapse. More importantly, the phrase has been a part of New Orleans life for far longer than that, including decades of use as a high school football chant. "Before it became a rallying cry of fans of the New Orleans Saints," the paper notes, "Who Dat was used as a cheer by St. Augustine High School. And before that it was perhaps first heard in minstrel shows in the later 1800s." The phrase's pop culture roots date at least as far back as Paul Laurence Dunbar and Will Marion Cook's song "Who Dat Say Chicken In This Crowd," published in 1898. That's 22 years before the NFL even existed. (Meanwhile the Bengals have been using the similar "Who Dey?" chant since the early 1980s.)

This case is absurd enough to have inspired some political pushback, with Sen. David Vitter (R-La.) writing the NFL to ask it to back off. The league replied that it doesn't want to control all uses of the phrase "Who Dat," just those related to professional football. What it hasn't done is established why it should have even that right. The fans didn't grab this chant from the team and start using it in unauthorized ways. The fans brought it to the field, and now the franchise thinks it should have the right to control those fans' speech.

Bonus listening: G.K. Darby has assembled a set of songs for the Super Bowl, including several variations on "Who Dat?" From 1983, here's Aaron Neville with "the Singing Saints":

…and here's a hip hop take from K. Gates:

Update: The NFL has backed down. As Ed says in the comment thread, they "realized the gun is pointed at their own feet."