Tuesday, April 12, 2011


“You can parody and make fun of almost anything, but that does not turn the universe into a caricature”[1]

Unlike other forms of freedom of speech guaranteed under the First Amendment, parody and satire plays a paramount role in dome of trademark and copyright. The dichotomy of the terms “parody” and “satire[2]” has been considered and defined by various jurists under enormous circumstances.

Parody and its meaning:

Black’s law dictionary defines the word “parody” as “A transformative use of a well-known work for the purposes of satirizing, ridiculing, critiquing, or commenting on the original work, as opposed to merely alluding to the original to draw attention to the later work.” The origin of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as “a song sung alongside another.” [3] Dictionaries has been describing parody as a “literary or artistic work the imitates the characteristic style of an author or a work for comic effect or ridicule” or as a “composition in prose or verse in which the characteristics turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.”[4]

In spite of its criticizing or ridiculing characteristics, a parody is guaranteed constitutional protection of free speech under the First Amendment of the US constitution. In Constitutional Law, a parody is protected as free speech. When considering parody under copyright law, a particular work is required to come under the definition of a parody and at the same time shall be a fair use of the copyrighted material, if not, it may constitute an infringement. This article provides an insight on the aspects related to the use of parody as a defense under free speech and the consequential rulings by various courts in the subject matter.

Legitimacy of parody:
It is a fact that a parody can claim legitimacy to some extent regardless of its copying and commenting nature, but this does not give either the parodist or a jurist about an idea as to the invisible line to be drawn that makes it illegitimate. For example, book reviews necessitates quoting of a copyrighted material for the purpose of criticizing, whereas a parody may possibly be a fair use considering the context and elements that constitute it. While considering a case,[5] the court declined the petitioner’s contention that any parodic use is presumably fair and stated that this has no more justification in law or on fact than the equally hopeful claim that the use for news reporting should be presumed fair.[6] 
The Act does not provide any proposal of favoritism over the victim for the parodists when it comes to evidence, and no practical presupposition for parody could be taken into account of the fact that a parody typically shadows into satire whilst the public is ridiculed by its inventive artifacts, or that such artifacts may have both parodic and nonparodic essentials. For that reason, like any other use, parody has to toil its line of attack through its pertinent features, and be adjudicated on a case by case basis, under the realm of trademark and copyright law.
Elements of parody:
In order to constitute parody there shall be certain distinguishing elements to the action of the parodists. The important features include an original work that is famous or familiar to a certain class of public. The parodists shall use only that much of the original work that is indispensable in the context in order to bring in the minds of the public the original work. Further, the parody shall subsequently become a fresh and original work.
When a work aims another work in a hilarious or satirical way, it constitutes a new creative work. This new creative work is capable to fight with other creative works in identical market even though they possess common characteristics.  But the fact that a parody is an independent innovative work can be established only when it "make some critical comment or statement about the original work which reflects the original perspective of the parodist—thereby giving the parody social value beyond its entertainment function." Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F. Supp. 351, 357 (ND Ga. 1979).          
Trademark parodies
As the court observed in Anheuser-Busch, Inc. v. Balducci Publications 1993, p.794-5) "trademark parody is a subspecies of the genre that pokes fun at or criticizes a business entity by spoofing the entity's trademark. Trademark parody is only effective if the mark is well-known and the parody is enough like the original to invoke an association.... Thus, trademark parodies raise a legal tension not unlike that addressed by the fair use doctrine of copyright law; a tension between the legitimate property rights of the trademark owner and the rights of the parodist to free expression"
While putting forward the above mentioned view, the Court considered the case Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591, 114 S.Ct. 1164, 1178 (1994) and concluded that the opinion of U.S. Supreme Court in the copyright case was an important guide for cases related to trademark parody. The court further stated that for a trademark parody to be successful, it must call up the original. "A parody must convey two simultaneous--and contradictory--messages: that it is the original, but also that it is not the original and is instead a parody" (Elvis Presley Enterprises v. Capece 1998, p. 199).
Furthermore, it is an established fact that "Trademark parodies, even when offensive, do convey a message. The message may be simply that business and product images need not always be taken too seriously; a trademark parody reminds us that we are free to laugh at the images and associations linked with the mark." L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir. 1987) (per Bownes, J.).  For the purpose of good defense in a case alleging infringement, a trademark parody needs to be used properly.
In re Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591, 114 S.Ct. 1164, 1178 (1994) (Souter, J.) court stated as follows: "We do not, of course, suggest that a parody may not harm the market at all, but when a parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because 'parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,' the role of the courts is to distinguish between 'biting criticism that merely suppresses demand and copyright infringement, which usurps it.' "
Court had opined that trademark parodies convey a message even when they are offensive. It may remind us that trade and artifact metaphors are not required to be taken critically; for that matter a trademark parody remind us of the fact that “we are free to laugh at the images and associations linked with the mark."  L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir. 1987) (per Bownes, J.).
Parody and commercial speech:
While considering issues related to commercial speech, the courts had developed a four-part analysis. To start with, one must resolve whether the parodist’s expression gain protection under the First Amendment. To constitute commercial speech in that provision, the expression must not be misleading and it must relate to a lawful activity. Then, one must consider whether the declared interest of the government is substantial. When both these above mentioned aspects give affirmative answers, one must decide whether the law directly advances the declared interest of the government, and whether it is not more far-reaching than is required to provide that interest. 447 U.S. 557 100 S.Ct. 2343 65 L.Ed.2d 341 Central Hudson Gas & Electric Corporation, Appellant, v. Public Service Commission of New York.
Infringement criteria:
Both federal and state laws clearly establish the fundamentals for a successful trademark infringement claim. To sum up, when contesting a trademark case, a plaintiff has the burden to prove that the defendant’s act of using its mark has brought up a likelihood of confusion with regard to the In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the source of the defendant's goods or services.
To prove the above aspect, a plaintiff must initially establish that its trademark is protectable. Further, the plaintiff will have to show that the defendant’s use of the trademark is confusingly similar and creates likelihood of confusion, among public. In the case of parody, the parody and the original work have to have that distinction and the public has to distinguish between the original and the parodic element the parodist intend to convey. When there is confusion, it can make the public believe that the defendant’s artifacts are somehow associated, connected, approved or authorized with the plaintiff or it is the same as that of the plaintiff.
Likelihood of confusion:
The courts have put forward eight factors to determine the elements of likelihood of confusion. This aspect is applicable in the case of parody also. In order to analyze whether a certain incident constitute the indispensable elements of "likelihood of confusion," courts usually look into eight factors as described below:
1.      The resemblance or similarity created by two marks when taken as a whole. (this aspects include the look of the marks, phonetic similarities, and fundamental meanings);
2.      The goods and services involved and their similarities (this include a review of the advertising channels for the goods);
3.      The potential strength of the plaintiff's mark;
4.      Evidence of actual confusion by the consumers, if any;
5.      The defendant’s intent in adopting its mark;
6.      The goods and its physical proximity in the retail marketplace;
7.      The likelihood of the consumer in exercising a degree of care; and
8.      The possibility of growth of the product lines.
The courts usually examine the above mentioned first five aspects when considering a trademark infringement case. The last three factors are, for the most part, additional general factors that courts can be consider.
To conclude, there is "a need to evoke the original work being parodied.[7]" Nonetheless, a good parody clearly stay away from causing likelihood of confusion as its intent is to highlight the difference between the host work and it’s parody. If the parodist fails to establish a clear distinction as mentioned above, the parody is no more a parody and it miserably fails.


                 Bernard Berenson quotes (American art critic, 1865-1959)
                 Satire has been defined as a work “in which prevalent follies or vices are assailed with ridicule” 14, supra at 500 Oxford English Dictionary
                 972. F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975).
                 11 Oxford English Dictionary 247 (2d ed. 1989)
                 Harper & Row, 471 U. S., at 561
                 Campbell v. Acuff-Rose, Inc. 1994

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