Even More Parodic than the Real Thing: Parody Lawsuits Revisited

An article focusing on a copyright decision initially may appear out of place in the pages of The Trademark Reporter®. Yet Campbell v. Acuff-Rose Music, Inc., in which the U.S. Supreme Court held that a parodic, transformative use of a copyrighted work, even if commercial, could qualify as a fair use, is quite significant for trademark lawyers. As a practical matter, parody cases increasingly involve copyright as well as trademark claims, so practitioners often encounter both within the same case. As a doctrinal matter, Campbell also has proved legally significant in trademark cases because the free-speech concerns underlying protection for parodies apply no matter what law is invoked against them. Campbell is thus a good illustration of the unexpected effects that Supreme Court decisions often have when the generalist Court tries its hand at the occasional intellectual property case. One of Campbell\u27s most significant - and unsatisfying - effects has been to elevate parody as a favored form of literary or artistic comment and devalue satire. Several courts have since explicitly relied on the distinction between these two forms of humor to impose liability on those who have created the latter, even though the actual language from the Court\u27s opinion counsels a more sensitive approach. This is a troubling trend, for at least two reasons. First, the distinction between parody and satire is too fine for courts (not generally recognized as great connoisseurs of humor) to make. Second, the parody/satire distinction simply is not responsive to the considerations that underline copyright law\u27s fair use doctrine, including First Amendment values served by satires as well as parodies. This article sets forth the context in which the parody/satire distinction arose in Campbell, then examines how it has been applied in subsequent copyright, trademark, and right of publicity cases. Briefly stated, our review shows that factually similar copyright cases have reached wildly divergent results, which illustrates Campbell\u27s analytical limits. Insofar as trademark law is concerned, the bias created in favor of parodies may well have made things worse by making secondary the only proper question in a trademark infringement case: whether a particular use is likely to cause consumer confusion. In recent right of publicity cases, by contrast, courts have steered away from the parody/satire distinction, but have not uniformly replaced it with a coherent analysis