Overview of the parody defense in Intellectual Property litigation
Parody is basically making a new work of art by commenting and criticizing another work of art. For example, you may hear a song that really bugs you. And you might decide “I want to make a parody song of that song.” So you write a funny set of lyrics, and basically create your own song and youtube video. You get really excited about your new creation, and you post it on your facebook, twitter, and other social media channels. You have a million hits in one day, then you get a takedown notice from Youtube, and a cease and desist letter from a record company telling you that you are infringing the copyrights of a band or artist, and that you are a willful copyright infringer and to cease and desist. Wow, what do you do now? You were just out having a good time and venting on something that was annoying to you about society. First thing you do is read this blog. Second thing you do is contact attorney steve using the contact form below.
Understanding the first amendment
When it comes to parody as a defense to intellectual property infringement, the old saying “parody is like shooting at the king, you better get it right.” A good parody (“spoof”) is protected free speech. But it is not easy to find the proper balance to strike in exercising your free speech rights. For example, just borrowing a catchy tune without also commenting on the original work could result in a lawsuit for infringement.
Free speech (such as political and social commentary is highly protected speech) under the first amendment to the United States Constitution. For example, in the Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 969 (10th Cir. 1996) case dealing with parody trading cards the federal Court noted:
So if you can make a strong “free speech” argument, weaving in some of these key words set forth in the caselaw, you are off to a good start.
What is the parody defense specifically?
The parody defense depends on the type of case the Plaintiff is bringing. The Plaintiff, or owner of the intellectual property, could be bringing a wide type of different claims against a defendant, normally where a Defendant is alleged to have infringed Plaintiff’s intellectual property (ex. trademarks, copyrights, right of publicity, etc.). There are different tests that will incorporate the parody defense. For example, free speech, fair use, transformative uses, etc.
What is satire?
Parody pokes fun at an original work. Satire uses the original work to comment on something besides the original work. Parody will get more protection, satire less.
Does the parody defense apply in copyright infringement cases?
Yes. Parody can qualify as a “fair use.” In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164, 1166, 127 L. Ed. 2d 500 (1994):
Is parody a defense to trademark infringement?
In Mattel, Inc. v. Walking Mountain Productions, 353 F.3d at 812 was a case that discussed that trademark owners “cannot use ‘trademark laws tocensor all parodies or satires which use its name’ or dress.” See also New Kids on the Block v. News America Pub., Inc., 971 F.2d 302, 309 (9th Cir.1992).
Trademark law seeks to protect against “consumer confusion” in the marketplace. The test for trademark infringement, the Sleekcraft factors, have eight things that are examined to determine whether there is a “likelihood of consumer confusion.” If there is, then a trademark infringement cause of action may succeed. But where you have a pure parody, that is obvious was not created by the creator of the original work, the argument FOR PARODY and AGAINST TRADEMARK INFRINGEMENT, becomes much stronger. For one case that dealt with Dr. Seuss books, the Court discussed trademark infringement in this context:
“In several cases, the courts have held, in effect, that poking fun at a trademark is no joke and have issued injunctions. Examples include: a diaper bag with green and red bands and the wording “Gucchi Goo,” allegedly poking fun at the well-known Gucci name and the design mark, Gucci Shops, Inc. v. R.H. Macy & Co., 446 F.Supp. 838 (S.D.N.Y.1977); the use of a competing meat sauce of the trademark “A.2” as a “pun” on the famous “A.1” trademark, Nabisco Brands, Inc. v. Kaye, 760 F.Supp. 25 (D.Conn.1991). Stating that, whereas a true parody will be so obvious that a clear distinction is preserved between the source of the target and the source of the parody, a court found that the “Hard Rain” logo was an infringement of the “Hard Rock” logo. In such a case, the claim of parody is no defense *1406 “where the purpose of the similarity is to capitalize on a famous mark’s popularity for the defendant’s own commercial use.” Hard Rock Cafe Licensing Corp. v. Pacific Graphics, Inc., 776 F.Supp. 1454, 1462 (W.D.Wash.1991).” See Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1405-06 (9th Cir. 1997).
Again, when doing a parody of a trademark (ex. a logo, or other identifying characteristics you need to be careful not to disparage, or infringe the trademark (or commit acts of trademark dilution). If you are going to imitate a trademark to poke fun, keep it tasteful for best results, and create something consumers will surely not confuse as to the actual source of the work. This could lead to a cease and desist letter and loss of investment on your end, and potential result in trademark litigation.
Can I make music or a song that parodies another song?
Again, making a “transformative use” of a song can raise a “fair use” defense to music copyright infringement. One great example is how “weird Al Yankovic” did parody songs back in the seventies and eighties. The transformative songs creating something new in the marketplace, and can be found to be protected free speech, or qualifying under the “fair use defense.” In one case the Court found:
How does the parody defense work in regard to a right of publicity infringement claim (name, image and likeness)?
Can parody be a defense to defamation (libel or slander)?
Yes. In some cases it can. In Henley v. DeVore, 733 F. Supp. 2d 1144, 1154 (C.D. Cal. 2010) the California district Court, Northern District held:
Contact a intellectual property & internet parody defense lawyers
If you are involved in an internet related lawsuit for distributing copyrighted or trademark goods without consent, or need to send or respond to a cease and desist letter, contact one or our Internet lawyers to discuss the law of parody or other legal issues that may be applicable in your case. We offer low cost legal services, and aggressive legal representation for both Plaintiff and Defendants in litigation settings, and provide general corporate legal counsel relating to parody law issues. We can be reached at (877) 276-5084 or fill out the contact form below to have one of our intellectual property attorneys get back to you, normally within the hour. Please leave your name and general nature of the case along with phone number.
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