US law: logos and satire/parody

[istara]

Disclaimer: I am not seeking actual legal advice, just an idea of the extents of artistic freedom in US law. I am not involved in litigation currently, nor is litigation even likely.

If someone used the trademark logos of an international company (in this case not a US-company) and altered them as a parody/critical satire, is there any defence for that under US freedom of speech laws?

For example, let’s say you took an image of Microsoft’s logo with its slogan “The future is now” and changed that to “The future was yesterday”. Would that be protected under US law, or would you have infringed Microsoft’s rights over its trademark logo?

I note on Photobucket, for example:

Upload, email or otherwise transmit any User Content that you do not have the lawful right to transmit (including any User Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the content) or any User Content that infringes the intellectual or proprietary rights of any third party (including, but not limited to, copyright, trademark, service mark or patent rights) including but not limited to derivative works of such content, defacement of such content, or User Content that would violate the right of privacy or publicity of any public or non-public persons;

I have always been quite impressed with the extent of freedom of speech in US law, as compared with other western countries, so it would surprise me if there wasn’t some fair useage of a trademark as comedy/parody/critique/satire.

[friedo]

In order to infringe upon a trademark, you usually have to use it (or something confusingly similar) to sell the same or similar products as the trademark holder. Editorial or satirical use of the trademark is usually not infringement.

For example, here’s an Onion article that displays McDonald’s very famous trademark.

[bordelond]

@friedo

Editorial or satirical use of the trademark is usually not infringement.

I can think of some American pop culture examples:

– McDowell’s hamburgers with the “golden arcs” in the movie Coming to America.

– Anyone else remember Garbage Pail Kids cards? Topps, the card manufacturer, did get sued by Coleco, manufacturer of the actual Cabbage Patch Kids. But Topps settled out of court, and were able to continue to produce GPK cards, albeit with slightly modified artwork.

– Those stickers they used to have spoofing brand-name groceries – Palooka Gum instead of Bazooka. Blunder Bread instead of Wonder Bread? They cribbed the artwork pretty closely from the actual labels.

[bordelond]

@bordelond

– Those stickers they used to have spoofing brand-name groceries – Palooka Gum instead of Bazooka. Blunder Bread instead of Wonder Bread? They cribbed the artwork pretty closely from the actual labels.

Wacky Packages – that’s them!

[yabob]

@bordelond

Wacky Packages – that’s them!

And some of the “Wacky Packages” titles were pulled because of cease and desist letters from the trademark holders, most famously, Morton Salt (parodied as “Moron Salt”). Whether or not Topps could have won a court battle, they chose not to fight it. For collectors, this just makes those ones more valuable because fewer of them were printed. Apparently, 35 years later, Morton Salt still cared enough about the issue to request eBay auctions of the sticker stopped:

http://www.moronsalt.com/

[istara]

So if one is not using the trademark for commercial reasons, nor deliberately trying to confuse customers with another product, there’s no infringement problem?

[Saint_Cad]

@istara

So if one is not using the trademark for commercial reasons, nor deliberately trying to confuse customers with another product, there’s no infringement problem?

A key point of trademark law is that a trademark must be protected/defended to remain valid. Usually this means that any use of a trademark whether for commercial purposes or not is usually litigated.

[Boyo_Jim]

I think you will be interested in this transcript of Fox News vs. Al Franken and the publishers of his book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”. Fox claimed trademark infringement for use of their motto “Fair and Balanced”.
.
Fox was essentially laughed out of court by the judge after about half an hour of arguments and a five-minute recess to evaluate their position.

There are hard cases and there are easy cases. This is an easy case, for in my view the case is wholly without merit, both factually and legally. Accordingly, the motion for a preliminary injunction is denied.

Factually, I conclude that there is no likelihood of confusion as to the origin and sponsorship of the book. It is highly unlikely that consumers are going to be misled into believing that Fox or Mr. O’Reilly are sponsors of the book. That is evident from the cover viewed as a whole. It is evident by Mr. Franken’s name being featured prominently across the top. It is evident from the word “lies” in big red letters across the faces of the other four individuals on the cover. It is evident from the phrase “the lying liars who tell them.”

I don’t know if there is a difference between consumers who would buy the book and Fox viewers. I don’t know if Fox is arguing that its viewers are less sophisticated than those who would buy Mr. Franken’s book. I don’t know. But either way, I think we are talking about relatively sophisticated consumers here. We are talking about a book that offers political and social commentary and satire.

As to Fox viewers, I think it is less likely that they will be confused because they know the individuals on the cover, and they’ve got to conclude that Mr. O’Reilly is not endorsing this book…

The expressive element of titles requires more protection than labeling, for example, for commercial products. Mr. O’Reilly himself used the trademark phrase, or a play on the trademarked phrase “the good, the bad and the ugly” in his book entitled, “The Good, the Bad and the Completely Ridiculous in American Life.” As the Authors’ Guild has pointed out in its very helpful amicus brief, there is a long list of similar such uses of trademarked phrases or names.

Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation. Here, whether you agree with him or not, whether you like what he says or not, in using the mark, Mr. Franken clearly is mocking Fox. In setting himself up in what is apparently a news room, he is mocking Fox and O’Reilly. Mr. O’Reilly is bringing to mind in fact the cover of one of Mr. O’Reilly’s books. Even though this may result in tarnishment or dilution in the general sense, it is fair criticism.

[istara]

@Boyo Jim

I think you will be interested in this transcript of Fox News vs. Al Franken and the publishers of his book, “Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right”. Fox claimed trademark infringement for use of their motto “Fair and Balanced”.
.
Fox was essentially laughed out of court by the judge after about half an hour of arguments and a five-minute recess to evaluate their position.

Oh that one is very interesting and useful - thanks for that!

[coffeecat]

OTOH, cartoonist Kieron Dwyer got bitten for what I think was a hilarious parody of Starbucks.