Day 6

The Slants go to the U.S. Supreme Court to argue their name is not a racial slur

Last week, the U.S. Supreme Court heard a case involving The Slants, an Asian-American dance-rock band fighting to trademark its name. The U.S. Copyright Office says it's a derogatory word and can't be copyrighted. The band says it's reclaiming the slur to empower Asian-Americans. The court's ruling could set a precedent in the fight over The Washington Redskins.
Left: The U.S. Supreme Court building / Right: Simon Tam of The Slants performs live at Alhambra Theatre on November 1, 2013 in Portland, Oregon. (Left: Win McNamee/Getty | Right: Suzi Pratt/FilmMagic )

When he looked around the music and entertainment business a few years ago, Simon Tam noticed how few East Asian-Americans and Pacific Islanders were visible in the industry.

From actors to producers, musicians and rock stars, Tam found the industry didn't represent his community.

The thought inspired him to create a dance music band composed entirely of Asian-Americans. He recruited some friends to pick up instruments and they were playing together within a couple of weeks. But he was stuck on the name.

Tam wanted to reference that lack of Asian-American visibility and give a nod to Asian-American activists who have inspired him. So he polled his friends, asking them, "What do you think all Asians have in common?'"

The response? "My non-Asian friends said 'slanted eyes," he says. 

From that point on, Tam's band was named "The Slants."

Tam wasn't ignorant of the word's implications.

"It's a reference to an obscure racial slur, one that Asian-Americans have been re-appropriating for decades, and using as a term of self-empowerment," Tam tells Day 6 host Brent Bambury.


Reclaiming a slur

Though he didn't predict it at the time, the name — which Tam describes as 'tongue-in-cheek' — eventually embroiled the band in a trademark lawsuit that has made its way to the Supreme Court of the United States.

Portrait of Simon 'Young' Tam of Asian-American band The Slants in Portland, Oregon, USA on 21st August 2015. (Anthony Pidgeon/Redferns)
After playing gigs for a few years and releasing some albums, The Slants wanted to take it to the next level and try to get a record deal.

Their lawyer advised them that the first step would be registering a trademark for the name. So they filled out the paperwork and submitted it, not giving it much significance.

But to Tam's surprise, their application was rejected. Putting aside his first assumption that they'd filled out the paperwork wrong, he discovered that their application was rejected under a section of American law called the Lanham Act Section 2(a).

This act and the case law around it prevent trademarks being registered that use language "disparaging" to a "substantial composite" of a referenced group.

In the course of their legal battle, the Trademark Office went about proving the disparaging nature of the word by citing websites like Urban Dictionary and Wikipedia that include definitions of 'slant' as derogatory to Asian-Americans.

The use of those websites as evidence struck Tam as unusual.

"It's actually kind of insulting," Tam says. "We've countered [their arguments] with thousands of pages of evidence from the Asian-American community, including letters from incarceration camp survivors, numerous organizations and one letter from an editor at the New American Oxford Dictionary, showing how the use of the word as a racial slur was pretty obscure to begin with, but now it's so obscure that most dictionaries have removed it from the entry as a possible definition."


Potentially far-reaching implications

The Supreme Court justices are currently deliberating on the case after hearing final arguments on January 18. Many are watching closely for their ruling, which may carry implications reaching far beyond the Portland band.

The case falls under the same area of law that has stymied the trademark registration of other groups like the band Thunderpussy, but approved the trademark of controversial groups like Dykes on Bikes.

Lanham's Act Section 2(a) is also what lost the Washington Redskins their trademark in 2014.

In the case of the Washington Redskins, Indigenous activists brought the suit against the team. They argued that the name was disparaging to a significant group of Native Americans. In a case that was widely covered by the media, the team appealed the decision up to the Supreme Court, who ultimately refused to take their case, but within a matter of months accepted The Slants' case.

And while the Washington Redskins lost their trademark, there is a chance they could get their trademark back should the Slants win.

Tam, however, hopes that his case speaks more to the marginalized groups who have sought trademarks and been turned away because of this law.

"I think [it's more important] not to frame it in terms of a football team but all of the hundreds of marginalized groups that have been denied trademark registrations — legitimate trademarks — because it would be unfavourable to the government," Tam says. "Those are usually communities of colour and LGBT groups."

We have to think about the groups that are most vulnerable…- Simon Tam

The various cases and their various outcomes, Tam says, point to a bureaucratic agency that should not be dealing with ethical questions.

"I don't think the moral line in the sand should be drawn by the Trademark office."

In spite of the protracted legal battle, Tam feels the experience is valuable.

"Now that we're here and spurring these conversations about racial identity and law, I feel quite humbled and honoured to contribute to that conversation," he said. "I think it's one that's really important to have right now."

Tam and The Slants have adapted their experience with the Supreme Court and the Trademark Office into a song on their new EP, The Band Who Must Not Be Named.