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heres some interesting tidbit on using copyright material as a parody
is L.L. Bean v. Drake Publishers (1987). High Society, a pornographic magazine, published a two-page parody entitled "L.L. Beam's Back-To-School-Sex-Catalog" in its October, 1984 issue. The sexually graphic article, which was clearly labelled as being a fictitious parody, depicted a facsimile of L.L. Bean's trademark.
L.L. Bean sought a restraining order to take the offending issue out of circulation. Bean's suit accused Drake Publishers of a variety of trademark related violations, including trademark dilution. The district court ruled for Drake on many of Bean's complaints, but the court did grant Bean a summary judgment in regard to its claim of trademark dilution. The district court ruled that the crude and sexually offensive nature of the parody had "tarnished Bean's trademark by undermining the goodwill and reputation associated with the mark." The court then issued an injunction barring further publication of the parody to prevent additional damage to Bean's trademark.
Drake appealed on the grounds that the injunction violated its First Amendment rights. The appeals court ruled that the district court had dismissed Drake's First Amendment rights too easily. First, the court stated that the use of Bean's trademark in the parody was an editorial and artistic use, since the parodied trademark wasn't used to promote any goods or services. Second, the court stated that while the parody was vulgar and offensive, it was still entitled to First Amendment protection. Chief Judge Bownes wrote,
Trademark parodies, even when offensive, do convey a message. The message may be simply that the 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.
In sharp contrast with this case is Mutual of Omaha v. Novak (1987). The Novak ruling came close on L.L. Beans's legal heels, but the Novak majority almost completely ignored the precedent.
In 1983, Franklyn Novak began selling T-shirts and other items emblazoned with a parody of the Mutual of Omaha "Indian Head" logo. Novak's parody depicted the head of a wasted human in an Indian war bonnet and had the phrases "Mutant of Omaha" and "Nuclear Holocaust Insurance" incorporated into the parody logo. Mutual of Omaha sued on the grounds that Novak had disparaged and infringed on its trademark. The district court rejected the disparagement claim but found for the insurance company on the trademark infringement claim and issued an injunction barring Novak from selling his parody merchandise.
Novak appealed the decision. In a majority decision, the court of appeals affirmed the lower court's ruling. The court ruled that Novak's parody would create confusion among consumers as to whether or not Mutual of Omaha was sponsoring Novak's merchandise and therefore violated both federal and state laws. The majority stated that although the parody had political content, Novak could have expressed his views in many other ways besides parodying the Mutual of Omaha logo. Thus, the court did not consider the injunction to be a violation of Novak's First Amendment rights. The majority ruling only mentioned L.L. Bean in a single footnote, stating that Novak did not violate Bean's precedent, since the Bean ruling was based on the "editorial or artistic" use of a trademark and the Novak case was based on the confusion issue.
Circuit Judge Heaney vigorously dissented with the majority:
The majority's holding sanctions a violation of Novak's first amendment rights. The T-shirts simply expressed a political message which irritated the officers of Mutual, who decided to swat this pesky fly buzzing around their backyard with a sledge hammer. ... We should not be party to this effort.
Heaney expressed serious doubts that anyone would confuse Novak's "Mutant of Omaha" parody with the real Mutual of Omaha. Furthermore, the insurance company had not given any evidence to prove that the parody had hurt its sales or reputation in any way. Heaney stated that nobody could doubt that Novak was using the parody to point out the folly of nuclear war, and he pointed out that scholars have rejected the idea that parodists must use "adequate alternative means of communication." And finally, Heaney argued that a trademark is "a form of intangible property that itself conveys or symbolizes ideas." Therefore, an attempt to enjoin a trademark parody censors the content of the expression more than the manner of the expression and so violates the First Amendment.
In comparing L.L. Bean and Novak, it is worth noting that the rulings in the cases run counter to intuitive logic. An offensive, sexually-oriented parody that could conceivably "tarnish" a company's image was found to be protected, whereas a milder, fairly non-offensive parody was enjoined.
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