Crazy Horse

On March 17, 1992, Hornell Brewing Company introduced The Original Crazy Horse Malt Liquor to the American market. Ferolito, Vultaggio & Sons, distributed the beverage across the country. Their business was primarily focused on creating images and promotion campaigns for the beverage industry. The business added images and symbolisms to goods that had no market recognition, with the hope that the newly created image would draw the attention of consumers. In this case, the good was malt liquor, which Ferolito, Vultaggio & Sons targeted the selling of to "African American and Hispanic men (groups that purchase most of the malt liquor consumed in the United States)" (Coome 200). The company targeted this market by using designs, images, and phrases thought to be important to these minorities: power and victory.

Crazy Horse was a famous leader of the Lakota tribe, known for being a spiritual warrior and defender of the Lakota Sioux people. Seth H. Big Crow, a descendant of Crazy Horse chosen by the Lakota people to break the traditional silence and represent Crazy Horse in public courts, stated that "He [Crazy Horse] gave his life protecting the Lakota people and culture from the greed of the land grabbers, gold seekers and liquor dealers over a century ago".

The Oglala people of Pine Ridge (also descendents of Crazy Horse) were the first to ask the brewers to voluntarily withdraw the label. When the brewers refused, Congress took action. In October 1992, President George Bush signed a law banning the national sale of any alcohol bearing the Crazy Horse label. Hornell went to court, citing infringement against its right to commercial free speech. In April of 1993, a New York federal court overturned the national ban on first amendment grounds. However, there are limitations on the first amendment rights of companies selling products. These limitations include:

• False advertising is prohibited

• Obscene language is prohibited in commercials.

• Cigarettes and liquor can not be advertised on television.

• Trademark law prohibits one company from using a name or logos, etc. that belong to another company.

In this case, Seth H. Big Crow and the Rosebud Sioux Tribe filed suit against the brewers for appropriation of the name without permission. The complaint filed by the Estate of Crazy Horse alleges causes of action under federal, state and Lakota law, including:

• Disparagement and defamation of spirit under Lakota law

• Misappropriation and misuse of property rights

• Privacy violations, including violation of the right of publicity

• Negligent infliction of emotional distress

• Intentional infliction of emotional distress

• Claims arising under the Indian Arts and Crafts Act (which prohibits false suggestions that a product is Indian produced-an Indian product, of Indian origin, or the product of a particular Indian or Indian Tribe)

• False designation of origin and false endorsement

• Trademark dilution.

One of the most important legal issues of the case is the right of publicity, a type of property right. They are usually considered intellectual property, in that they are rights to a property that is not physical or touchable, or expressed ideas or thought processes (often protected through patents). Intellectual property right includes protection of one's sentimental possessions or any other piece of physical property that can be inherited and passed down from generation to generation.

Ferolito & Vultaggio contested the fact that they had "merely taken something from the public domain and turned it into something of value; whatever symbolic value the name had was due to their own authorship of the trademark" (Coome 201). However, no one can use the name of a living person without his or her permission. Crazy Horse died 125 years ago, and thus at issue is who owns the right to the name and how long after his death is the right preserved. In this case, the right to control and protect Crazy Horse's is an intangible, intellectual property right held by his family for at least seven generations. Local jurisdiction determines how long after death the right survives. Here, Lakota Customary Law provides that the right of publicity survives seven generations after the person's death. Thus, this right in the Crazy Horse's name is an indigenous intellectual property right that belongs to the tribes and family of Crazy Horse, not to Hornell Brewing Company. As such, the United States Patent and Trademark Office examiner refused to register Ferolito & Vultaggio's mark, because it violated a section of the Federal Trademark Act that "bars the registration of marks deemed 'immoral . . . or scandalous matter; or matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or dispute'" (Coome, reference #178, 202).

Seeing as Seth H. Big Crow represented The Estate of Tasunke Witko (Crazy Horse), a major problem arose in the tribal courts that prevented the case from immediately going to the federal court system. The Rosebud Sioux Tribal court stated that the Estate had no legal rights because it did not have standing to sue Hornell Brewing Company. Under the Indian Arts and Crafts Act, only the U.S. Attorney General or a federally-recognized Indian tribe would have such standing. To circumvent this problem, the Rosebud Sioux Tribe (a federally recognized Indian tribe) joined with Seth H. Big Crow, to retain the intellectual property rights of the Crazy Horse estate.

In 1992, G. Heileman Co, Inc., was the bottler for Hornell Brewing Company and was originally one of the defendants in the Estate's lawsuit. However, G. Heileman Co, Inc., filed for bankruptcy relief in 1996 and was taken over by Strohs Brewing Company. As a result of their purchase of G. Heileman Co. Inc., Strohs assumed all legal responsibilities therein, which automatically made them a defendant in the lawsuit brought upon by the Rosebud Sioux Tribe. The two parties fought fervently for ownership of the Crazy Horse name; the Tribe's fight being for the misuse and commercialization of a heroic icon who denounced the use of alcohol, and the brewing company's fight for the first amendment freedom to use figures in the public domain as advertising tools.
On April 25, 2001, after negotiation between Strohs Brewing Company and the Estate of Crazy Horse and the Rosebud Sioux Tribe, they settled. The agreement included:

• A public apology for misusing the name Crazy Horse

• Assignment to the Estate of all intellectual property rights in the name of Crazy Horse, including outstanding applications with the Patent and Trademark Office

• Cooperation in developing documents in SBC Holdings' possession

• Destruction of all packages and packaging materials related to Crazy Horse Malt Liquor

• Agreement to never use the name Crazy Horse in any commercial venture.
  

In addition, Strohs agreed to present the Estate and Rosebud Sioux Tribe with 32 Pendelton blankets, 32 braids of sweet grass, and 32 twists of tobacco (one for each of the 32 states in which the malt liquor is distributed). Strohs also presented the Estate and the Rosebud Sioux Tribe with seven thoroughbred race horses (one for each of the seven bottling facilities). "The image of these two Italian American entrepreneurs leading horses across the plains to show homage due to an Indian ancestral spirit is certainly more striking than the accompanying claim for punitive damages" (Coome 204).
On April 26, 2001, John Stroh III (president of the company) and his attorney came to Rosebud for a ceremony and personally apologized to the tribes and relatives of Crazy Horse for the offensive conduct of the G. Heileman Brewing Company.

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