A federal judge says Sony Music must face a lawsuit that claims the name of Future’s chart-topping album High Off Life infringed the trademark rights of a creative agency that uses that exact same name.
Sony argued that the lawsuit should be tossed out immediately because the name of a creative work like an album is protected by the First Amendment, but U.S. District Judge Scott Hardy ruled Wednesday that it was too early to make that call.
Though he stressed that he was expressing “no opinion” on the merits Sony’s free-speech defense, the judge said simply that “this is not the appropriate stage in the litigation to address that defense.”
High Off Life, Future’s eighth studio album, reached the top spot on the Billboard 200 in May 2020. It was originally set to be titled “Life Is Good” – the name of the album’s third single – but switched to the new name as the COVID-19 pandemic swept made life somewhat less than good.
In October 2020, Sony and Future’s Freebandz Productions were sued over the name by a company called High Off Life LLC, which claimed the album infringed its trademark rights to the phrase. The company says it started selling High Off Life apparel in 2009, expanded into hosting concerts after that, and in 2017 launched a creative agency that produces music and videos. It also operates a hip hop YouTube called “High Off Life TV.”
The case claimed that Sony’s promotion of Future’s album had buried the smaller company in search results: “Overnight, Defendants destroyed HOL’s investment of many years and many thousands of dollars into building consumer recognition.”
To beat the lawsuit, Sony and Freebandz cited something called the Rogers test — a legal doctrine that makes it very difficult to win lawsuits over the use of brand names in expressive works like movies, television shows and music. The rule says that authors have a First Amendment right to use trademarks in their work unless it explicitly misleads consumers, or is completely irrelevant to the artwork.
That’s a very high bar, and could very well doom High Off Life’s lawsuit eventually. But in Wednesday’s decision, Judge Hardy said he couldn’t make that decision without allowing both sides to gather evidence and build their cases.
“Given that further development of a factual record is necessary before conducting an in-depth analysis of Defendants’ First Amendment defense, the Court declines to further consider Defendants’ First Amendment arguments at this stage of the proceedings,” the judge wrote.
In particular, Judge Hardy said additional evidence might show that the name had no relevance to the Future’s actual artistic message. He also said the First Amendment might not shield Sony from claims related to merchandise sold in connection with Future’s album.
A rep for Sony did not return a request for comment on Friday.