Parody legality? at DVinfo.net

Josh Bass · February 20th, 2003, 02:27 AM

I want to do a parody that mentions a major network. If I say, "from the people who brought you "(actual show)" and "(actual show)", the "(actual network)" network presents. . .", as well as use their logo, is this okay seeing as how it's a parody, or do I have to do something like MadTV does when they alter a name slightly (e.g. "Sniggers" instead of "Snickers")

Richard Alvarez · February 20th, 2003, 07:14 AM

Josh,

The short answer is that parody is protected.

The LONG answer is slander, defamation and lible are not.

And therein lies job security for lawyers such as my wife.

How comfortable are you with the legal exposure you would be taking to use the actual names, instead of a surrogate?

How likely is it that your parody will be seen by anyone who gives a flip?

No lawyer will tell you that your parody wil NOT get you sued, only what your risks for getting sued are.

How much money do you have in the bank?

Bill

Paul Tauger · February 20th, 2003, 07:18 AM

Okay, I can't give legal advice to non-clients. You're a non-client, this isn't legal advice, and no attorney-client relationship is established between us. For advice with a specific problem consult your own lawyer.

With that said . . .

There are, essentially, four concerns that arise with parody in this kind of context: trademark infringement, trademark dilution and trade libel and unfair competition.

Parody is a defense to trademark infringement, though one that is not as highly evolved as its copyright counterpart. As a rule, to be eligible for the defense of parody, that which would otherwise be infringed must be the subject of the parody.

Trademark dilution is a more difficult area. Federal dilution law precludes use of a "famous" trademark in such a way as to tarnish it, or to diminish its source-identifying character (state dilution laws vary from jurisdiction to jurisdiction). That means there are two separate concerns. The first, tarnishment, usually occurs when a famous mark, i.e. one which is well-known, is used in a socially demeaning context (which usually means in connection with sex and/or drugs). The most famous example I can think of was the XXX film, "Debbie Does Dallas" (which, arguably, was a parody). The producers were sued for trade dress infringement and dilution for showing girls dressed in Dallas Cowboys Cheerleaders uniforms. That was a tarnishment case.

Non-tarnishment dilution generally refers to significant use of a trademark in such a way as to render a famous mark no longer distinctive. However, courts are split as to whether dilution requires consumer confusion (which then renders dilution merely another species of trademark infringement) or not. Generally, a parody use should not result in non-tarnishment dilution, since it doesn't effect the source-indentifying distinctiveness of the mark.

Trade disparagement, sometimes called trade libel, is a creature of state law, so the definitions vary from jurisdiction to jurisdiction. Generally, these definitions entail falsely representing the nature or character of goods or services so as to cause economic harm. Trade disparagement can also be actionable as a species of federal unfair competition.

Note, too, that a slight alteration of the mark might not be enough to avoid liability under any of these theories. "Sniggers" vs. "Snickers" _might_ be enough, depending on the context, but "Snikkers" vs. "Snickers" probably would not be enough. The test is whether two marks are substantially similar. As a rule, minor alterations in spelling or punctuation are not enough to avoid liability.

Without knowing exactly what you are planning as a parody, and where and how you plan to use the parody, it is impossible to say whether what you want to do exposes you to potential liability. If you do this kind of thing for a living, you should have a policy of general liability insurance that includes indemnification for advertising injury resulting from trademark and/or copyright infringement, and misappropriation of style of doing business (though even that is no guarantee that you're covered, since different insurance companies construe the clause differently). You should also consult with a competent intellectual property lawyer -- intial consultations are usually free, and the cost of reviewing your project should be quite nominal. Your local bar association can provide a referral.

Infringement actions are extremely expensive to defend. Don't gamble with your livelihood and your personal finances.

Rick Spilman · February 20th, 2003, 07:56 AM

"The producers were sued for trade dress infringement and dilution for showing girls dressed in Dallas Cowboys Cheerleaders uniforms. That was a tarnishment case."

Just out of curiosity, what was the outcome of the case?

The world is a strange place. "Debbie Does Dallas" is now an off-Broadway musical with no nudity or explicit sex. It has gotten reasonably good reviews.

Paul Tauger · February 20th, 2003, 08:10 AM

Quote:

"The producers were sued for trade dress infringement and dilution for showing girls dressed in Dallas Cowboys Cheerleaders uniforms. That was a tarnishment case."

Just out of curiosity, what was the outcome of the case?

As I recall, they were found liable. However, there is also a long line of what I call "dirty" cases in which liability seems to turn on whether the judge thought the work was "dirty" or not. For example, the seminal parody case was Disney v. Air Pirates, which involved a suit by Disney over an R. Crumb comic that featured Mickey and Minnie using drugs and engaging in oral sex (among other things). Though the comic was clearly a parody, the court went to great lengths to come up with something called the "conjure up" test to find liability -- a parodist can take no more than is necessary to "conjure up" the original, and defendants exceeded that quantum (whatever it was).

Josh Bass · February 20th, 2003, 12:56 PM

Alright. . .so I'm thinkin' easier to change the network and shows so that they're easily recognizable than worry about the hassle. I'd be flattered if people saw it who give a flip.

Stephen Boss · January 9th, 2008, 06:20 PM

Im trying to find out if there are potential problems with doing a parody and using the original film name in your parody's title. For example... if I wanted to do a parody on the film "Terminator", could I title the parody something like "Ghost Terminator" and have the film be about a guy that goes around exterminating ghosts? Or is that asking for trouble?

Paul Tauger · January 9th, 2008, 08:14 PM

Quote:

Originally Posted by Stephen Boss

Im trying to find out if there are potential problems with doing a parody and using the original film name in your parody's title. For example... if I wanted to do a parody on the film "Terminator", could I title the parody something like "Ghost Terminator" and have the film be about a guy that goes around exterminating ghosts? Or is that asking for trouble?

Please spend some time searching here on the term, "parody." There are a number of requirements before something will come within the fair use exception for parody and, because fair use doctrine is heavily fact-intensive, there's no way to determine whether what you plan to do will come within the exception based on your example. Finally, you're not going to be able to get legal advice here -- if your work well receive sufficient exposure as to attract the attention of the rights owner of whatever it is you are parodying, you'd be well advised to consult an attorney.

February 20th, 2003, 02:27 AM	#1
Josh Bass Slash Rules! Join Date: Apr 2002 Location: Houston, Texas Posts: 5,472	Parody legality? I want to do a parody that mentions a major network. If I say, "from the people who brought you "(actual show)" and "(actual show)", the "(actual network)" network presents. . .", as well as use their logo, is this okay seeing as how it's a parody, or do I have to do something like MadTV does when they alter a name slightly (e.g. "Sniggers" instead of "Snickers") __________________ The Bass' camerawork The Bass on IMDB

February 20th, 2003, 12:56 PM	#6
Josh Bass Slash Rules! Join Date: Apr 2002 Location: Houston, Texas Posts: 5,472	Alright. . .so I'm thinkin' easier to change the network and shows so that they're easily recognizable than worry about the hassle. I'd be flattered if people saw it who give a flip. __________________ The Bass' camerawork The Bass on IMDB

February 20th, 2003, 07:14 AM	#2
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	Josh, The short answer is that parody is protected. The LONG answer is slander, defamation and lible are not. And therein lies job security for lawyers such as my wife. How comfortable are you with the legal exposure you would be taking to use the actual names, instead of a surrogate? How likely is it that your parody will be seen by anyone who gives a flip? No lawyer will tell you that your parody wil NOT get you sued, only what your risks for getting sued are. How much money do you have in the bank? Bill

February 20th, 2003, 07:18 AM	#3
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	Okay, I can't give legal advice to non-clients. You're a non-client, this isn't legal advice, and no attorney-client relationship is established between us. For advice with a specific problem consult your own lawyer. With that said . . . There are, essentially, four concerns that arise with parody in this kind of context: trademark infringement, trademark dilution and trade libel and unfair competition. Parody is a defense to trademark infringement, though one that is not as highly evolved as its copyright counterpart. As a rule, to be eligible for the defense of parody, that which would otherwise be infringed must be the subject of the parody. Trademark dilution is a more difficult area. Federal dilution law precludes use of a "famous" trademark in such a way as to tarnish it, or to diminish its source-identifying character (state dilution laws vary from jurisdiction to jurisdiction). That means there are two separate concerns. The first, tarnishment, usually occurs when a famous mark, i.e. one which is well-known, is used in a socially demeaning context (which usually means in connection with sex and/or drugs). The most famous example I can think of was the XXX film, "Debbie Does Dallas" (which, arguably, was a parody). The producers were sued for trade dress infringement and dilution for showing girls dressed in Dallas Cowboys Cheerleaders uniforms. That was a tarnishment case. Non-tarnishment dilution generally refers to significant use of a trademark in such a way as to render a famous mark no longer distinctive. However, courts are split as to whether dilution requires consumer confusion (which then renders dilution merely another species of trademark infringement) or not. Generally, a parody use should not result in non-tarnishment dilution, since it doesn't effect the source-indentifying distinctiveness of the mark. Trade disparagement, sometimes called trade libel, is a creature of state law, so the definitions vary from jurisdiction to jurisdiction. Generally, these definitions entail falsely representing the nature or character of goods or services so as to cause economic harm. Trade disparagement can also be actionable as a species of federal unfair competition. Note, too, that a slight alteration of the mark might not be enough to avoid liability under any of these theories. "Sniggers" vs. "Snickers" _might_ be enough, depending on the context, but "Snikkers" vs. "Snickers" probably would not be enough. The test is whether two marks are substantially similar. As a rule, minor alterations in spelling or punctuation are not enough to avoid liability. Without knowing exactly what you are planning as a parody, and where and how you plan to use the parody, it is impossible to say whether what you want to do exposes you to potential liability. If you do this kind of thing for a living, you should have a policy of general liability insurance that includes indemnification for advertising injury resulting from trademark and/or copyright infringement, and misappropriation of style of doing business (though even that is no guarantee that you're covered, since different insurance companies construe the clause differently). You should also consult with a competent intellectual property lawyer -- intial consultations are usually free, and the cost of reviewing your project should be quite nominal. Your local bar association can provide a referral. Infringement actions are extremely expensive to defend. Don't gamble with your livelihood and your personal finances.

February 20th, 2003, 07:56 AM	#4
Rick Spilman Major Player Join Date: Dec 2002 Location: Jersey City, NJ Posts: 366	"The producers were sued for trade dress infringement and dilution for showing girls dressed in Dallas Cowboys Cheerleaders uniforms. That was a tarnishment case." Just out of curiosity, what was the outcome of the case? The world is a strange place. "Debbie Does Dallas" is now an off-Broadway musical with no nudity or explicit sex. It has gotten reasonably good reviews.

January 9th, 2008, 06:20 PM	#7
Stephen Boss Regular Crew Join Date: Aug 2007 Location: Miami, FL Posts: 52	Im trying to find out if there are potential problems with doing a parody and using the original film name in your parody's title. For example... if I wanted to do a parody on the film "Terminator", could I title the parody something like "Ghost Terminator" and have the film be about a guy that goes around exterminating ghosts? Or is that asking for trouble?