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Copyright, Trademark and Parody

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Charles Halloran

on 22 October 2016

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Transcript of Copyright, Trademark and Parody

PARODY
Copyright Fair Use
What is a Copyright?
Why would the law protect parody
when it would otherwise be considered
copyright or trademark infringement?
Conclusion
Parody is recognized as an important mechanism for criticizing and commenting on political, social and artistic subjects. The law balances free expression rights with the rights of copyright and trademark owners.
How is it infringed?
the owner of an original work of authorship
is granted the exclusive right to:
reproduce the work
prepare derivative works
distribute copies
perform the work in public
display the work in public
When a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
What is a derivative work?
Anything based on an existing work
What is a trademark
How is it infringed?
A trademark is a word, phrase or symbol that is used to identify a manufacturer or sponsor of a good or the provider of a service. 
Trademark infringement only occurs when you use a trademark that is similar to the trademark of another and, as a result, the public is likely to be confused as to the source or sponsorship of the goods or services being offered.
Other theories to protect trademarks?
Trademark dilution (tarnishment or blurring) occurs when
the use of mark results in the 'whittling away of the
value of a trademark' even when used on very different goods
famous marks only
must be commercial use
Nissan Joe
Barbie Girl
Logorama
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
Trademark Fair Use
Only applies to dilution claims

(A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person
other than as a designation of source for the person’s own goods or services,
including use in connection with—
(i) advertising or promotion that permits consumers to compare goods or services; or
(ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
(B) All forms of news reporting and news commentary.
(C) Any noncommercial use of a mark.
Examples
Barbie Girl

Nissan Joe

Logorama

Charbucks

Shepard Fairey - HOPE

ProtectMarriage.com
MATTEL, INC. v. MCA RECORDS, INC., 296 F.3d 894 (2002)
“The problem arises when trademarks transcend their identifying purpose. Some trademarks enter our public discourse and become an integral part of our vocabulary. How else do you say that something's "the Rolls Royce of its class"? What else is a quick fix, but a Band-Aid? Does the average consumer know to ask for aspirin as "acetyl salicylic acid"? 
. .
. Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law.”
“The song does not rely on the Barbie mark to poke fun at another subject but targets Barbie herself.”
Trademark infringement: only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. 
“By contrast to trademark infringement, the injury from dilution usually occurs when consumers aren't confused about the source of a product: Even if no one suspects that the maker of analgesics has entered into the snowboard business, the Tylenol mark will now bring to mind two products, not one. Whereas trademark law targets "interference with the source signaling function" of trademarks, dilution protects owners "from an appropriation of or free riding on" the substantial investment that they have made in their marks.”
Barbie Girl is not purely commercial speech, and is therefore fully protected. To be sure, MCA used Barbie's name to sell copies of the song. However, . . . the song also lampoons the Barbie image and comments humorously on the cultural values Aqua claims she represents. Use of the Barbie mark in the song Barbie Girl therefore falls within the noncommercial use exemption to the FTDA. For precisely the same reasons, use of the mark in the song's title is also exempted.
“The parties are advised to chill.”
Settled
Oscar for Best Animated Short - 82nd Academy Awards 2010
STARBUCKS CORPORATION v. WOLFE BOROUGH COFFEE INC, (2009 2d Circuit)
the District Court issued an opinion and order ruling in favor of Black Bear and dismissing Starbucks' complaint. Among its findings, the court determined that there was neither actual dilution to establish a violation of the federal trademark laws nor any likelihood of dilution to establish a violation of New York's trademark laws. The court also found that Starbucks failed to prove its trademark infringement and unfair competition claims because there was no likelihood that consumers would confuse the Charbucks Marks for the Starbucks Marks.
The current federal statute defines dilution by blurring as an “association arising from the similarity between a mark and a famous mark that impairs the distinctiveness of the famous mark,” and the statute lists six non-exhaustive factors for determining the existence of an actionable claim for blurring. 15 U.S.C. §1125(c)(2)(B).
Dilution by tarnishment is an “association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.”
Starbucks argues that the District Court “erred by failing to find that ‘Charbucks' damages the positive reputation of Starbucks by evoking both ‘Starbucks' and negative impressions in consumers, including the image of bitter, over-roasted coffee.”
The appellate court found no tarnishment
As evident from the statutory language, Black Bear's use of the Charbucks Marks cannot qualify under the parody exception because the Charbucks Marks are used “as a designation of source for [Black Bear's] own goods[, i.e., the Charbucks line of coffee].”
As the owner of Black Bear affirmed during his testimony, “[t]he inspiration for the term Charbucks comes directly from Starbucks' tendency to roast its products more darkly than that of other major roasters.” The owner of Black Bear further testified that the Charbucks line of products “is the darkest roasted coffee that we do” and is of “[v]ery high quality.” Thus, the Charbucks parody is promoted not as a satire or irreverent commentary of Starbucks but, rather, as a beacon to identify Charbucks as a coffee that competes at the same level and quality as Starbucks in producing dark-roasted coffees.
Charbucks wins:
lack of similarity of marks
no blurring and no infringement
the decision was not based on a parody defense
Settled
Issue:
Does the use by the Courage Campaign of an altered version of ProtectMarriage.com's trademark to oppose proposition 8 violate ProtectMarriage.com's rights?
Facts:
In 2008, the California Electorate passed Proposition 8, which amended the state constitution to provide that "Only marriage between a man and a woman is valid or recognized in California."
ProtectMarriage supported Prop 8 while Courage Campaign opposed it.
Holding: The US District Court for the Eastern District of California denied the request for a temporary restraining order, finding the use to be protected as a parody.
ProtectMarriage.com v. Courage Campaign, 680 F.Supp.2d 1225 (2010).
Parody: a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule

Satire: a literary work holding up human vices and follies to ridicule or scorn
Courts particularly protect parody as fair use
Full transcript