Trademark Parody: Lessons From the Copyright Decision in Campbell v. Acuff-Rose Music, Inc.

Parodies have long provided many of us with amusement, entertainment,and sometimes even information. An effective parody can convey one or more messages with powerful effect. The message may be a political statement, social commentary, commercial speech, a bawdy joke, ridicule of a brand name, criticism of commercialism, or just plain humor for its own sake. Often someone\u27s ox is being gored, or someone feels that a property right has been infringed. The party so injured often contemplates a lawsuit, and an array of legal theories are available to further that impulse. Perhaps copyright infringement is the claim, if some protectable expression has been used in the parody; or the right of publicity, if a person\u27s name, likeness, or other identifying characteristic has arguably been usurped; or intentional infliction of emotional distress, if the parody is perceived as too biting. When a trademark has been used in a parody, a panoply of federal and state law claims can be asserted, including federal trademark infringement, violation of section 43(a) of the Lanham Act of 1946,\u27 common law unfair competition, and violation of a state trademark statute. The gist of any of these claims is practically the same; the parodist caused a likelihood of consumer confusion or otherwise infringed upon the trademark owner\u27s good will. If the trademark owner cannot make this showing, it may resort to a dilution claim under state statutes or case law (and now under federal law), alleging here that the parody blurred the distinctiveness or tarnished the image of a distinctive mark, even though it did not cause a likelihood of confusion. The Supreme Court has recognized parody\u27s protected role a number of times in specific contexts but has not offered general guidelines for dealing with all intellectual property claims involving parody. Given the distinct nature of each of these claims and the need to decide only the particular case at hand, the lack of general guidance is not surprising. The result, however, has been confusion. Lower courts have often struggled with parodies in intellectual property cases, and many law review articles have been written on the topic. The treatment of parodies in trademark law is one of the more serious areas of difficulty, particularly because the Lanham Act does not appear to contemplate or address the issue. The likelihood of confusion test provides a conceptual approach that works well enough in garden variety trademark cases, but it provides an uncomfortable fit in parody cases. The Supreme Court\u27s recent copyright decision in Campbell v. Acuff-Rose Music, Inc., provides some guidance for the treatment of parodies in copyright cases. Although Campbell focused on copyright parodies, the case may also provide some important principles for the analysis of parody in trademark law. Therefore, this article discusses Campbell\u27s broader relevance, specifically in trademark cases

Tying Arrangements and the Computer Industry: Digidyne Corp. v. Data General Corp.

V diskurzu umění nových médií se setkáváme s nadprodukcí pojmenování této umělecké praxe. Produkce neologismů je pro tuto disciplínu natolik specifická, že můžeme mluvit o tekuté identitě diskurzu nových médií. Příspěvek je věnován specifikaci pojmu softwarové umění ve vztahu k jiným označením umění využívajícího digitální média, konkrétně počítačové umění a počítačem generované umění. Softwarové umění představíme jako disciplínu propojující matematické, poetické a metafyzické chápání komputace (A. Lovelace), jako diskurz osvobozující software z logiky čisté funkcionality ve prospěch jeho metaforické funkce (A. Turing), a jako uměleckou tvorbu zkoumající limity lidské i strojové racionality a imaginace, kterou můžeme nazvat extrémní programování nebo programování excesu.In the discourse of new media art, we meet with overproduction of terms for the artistic practice. Production of neologisms is so characteristic for this discipline that we can talk about fluid identity of new media discourse. The paper is devoted to the specification of the concept of software art in relation to other terms referring to the digital media arts, specifically computer art and computer generated art. The software art will be presented as a discipline that links mathematical, poetic and metaphysical understanding of computation (A. Lovelace), as discourse, whose ambition is to free software from logic of pure functionality in favor of its metaphorical function (A. Turing), and as a creative activity exploring the limits of human and mechanic rationality and imagination in the forms of activities that can be called extreme programming, or programming of excess

Tales of Grief and Destruction

Mississippi Poets: A Showcas

The Restatement\u27s Rejection of the Misappropriation Tort

Some legal theories, like the proverbial vampire, refuse to die. The common law tort of misappropriation is one such legal theory, and the recent Restatement (Third) of Unfair Competition (Restatement) may finally lead to the demise of this outdated cause of action. Misappropriation began advisedly enough as a means of protecting certain intellectual property rights from unjust usurpation, often by direct competitors employing improper means. Arising before comprehensive copyright, patent, and trademark laws were fully developed, the tort may have played an important role in protecting intangible proprietary interests.The tort\u27s high water mark was the 1918 Supreme Court decision in International News Service v. Associated Press. Since then, the role of the misappropriation tort has withered with the expansion of statutory intellectual property rights, particularly the Copyright Act of 19763 and the Lanham Trademark Act of 1946. Nonetheless, the tort has continued to exist as an alternative--and often unbridled--avenue for relief when statutory law denies protection in particular cases. The new Restatement confronts the tort directly and contends that it no longer plays a role as an independent cause of action. This position is consistent with most cases addressing the issue, as well as with sound intellectual property policy. In particular, the tort of misappropriation threatens the existence of a well defined “public domain” of information to which the public can freely obtain access. This article contends that the Restatement\u27s position is the correct one based upon intellectual property law and policy. The tort of misappropriation does not systematically further incentives for creative effort. At the same time, its broad definition of “unfair competition” threatens competitive freedom and consumer welfare. The misappropriation tort\u27s ill-defined and potentially harmful breadth is unwarranted, and its demise is long overdue

Trademarks & The First Amendment After Matal v. Tam

The United States Supreme Court\u27s unanimous ruling in Matal v. Tam is a landmark decision regarding the intersection between free speech and trademark law. Addressing whether trademarks can legitimately be barred from federal trademark protection under the Lanham Act based solely on their possible disparaging content, the litigation involving an Asian-American band that sought to register the name, The Slants, brought this important interplay into stark relief. Writing in bold strokes, Justice Alito\u27s opinion holds that the Lanham Act\u27s prohibition on disparaging marks, 15 U.S.C. 51052(a), violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. Justice Kennedy\u27s concurring opinion (which was joined by three other Justices) also broadly states: the viewpoint discrimination rationale renders unnecessary any extended treatment of other questions raised by the parties. \u27 The Court\u27s categorically worded decision will have important implications for both the First Amendment and for trademark law for years to come. The question is thus how far does the Tam decision reach, and whether it will upend major aspects of trademark law. This article provides an analysis of the implications of Tam for trademark law, both in terms of eligibility for registration and in terms of the scope of trademark protection. The article takes the view that Court correctly found the prohibition on registration of disparaging marks to be contrary to fundamental principles of free speech, and that its analysis should apply directly to the similar blanket prohibitions on registering immoral or scandalous content. The article suggests ways in which these provisions could be revised or narrowed to satisfy First Amendment scrutiny. In contrast to the Lanham Act provisions that are now plainly unconstitutional, other prohibitions found in the Lanham Act, which preclude deceptive, confusingly similar, and functional marks, can be defended based upon traditional trademark principles that are consistent with robust First Amendment protections for free speech. This article contends that First Amendment principles do allow for most of the statutory limitations placed on trademark registration, and that - contrary to the predictions of some commentators - the ruling will not cause any significant disruption in the large majority of trademark cases. It is true, however, as at least one court has now held, that the Lanham Act rules against immoral, scandalous, and disparaging marks must be completely reevaluated based on free speech considerations. Finally, the article addresses whether Tam might eventually alter the extent to which the scope of protection trademark owners receive based on their ability to prevent confusingly similar uses and to prevent dilution by tarnishment or blurring might be subject to challenge under the First Amendment. The article finds that claims by trademark owners based on consumer confusion or dilution should generally be unaffected by the Supreme Court\u27s decision in Tam

Editorial

This is Mythellaney, a magazine for fun and for fantasy. Mythellaney is concocted by people like you who love reading about beasts, armor, princes, and then, (hopefully) writing about them. The magazine is not very large at present. Our goal is to grow to include not only stories by our readers, but also top professional talent

Dean John Wade and the Law of Torts

Dean John Wade\u27s death last year ends the career of a great scholar, teacher, and administrator. His many accomplishments and his impressive personal traits have been duly praised and chronicled. His legacy includes an impressive body of scholarly work, many former students trained in the ways of the law, and institutions that are better for his walking their hallways. This article focuses on one particular aspect of Dean Wade\u27s contribution--his impact on the law of torts

Intellectual Property Resources in and for Space: The Practitioner\u27s Experience

Today, our inquiry is timely because, increasingly, intellectual property law is becoming more important in space activities. The increasing sophistication of international cooperation and the growth of commercial and private space activities have brought intellectual property issues to greater prominence