Trademark Parody: Lessons from the Copyright Decision in Campbell v. Acuff-Rose Music

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