05/14/18

“What’s in a name? A parody by any other name would smell as sweet:” a dueling case study and comment

“What’s in a name? A parody by any other name would smell as sweet:” a dueling case study and comment

Kyle Serilla

We live in a post-post-modern culture where even an “it’s all been done before” attitude has been... well... done before. Our references are referencing other references. To say it another way, references in modern communication have been so stripped from their original context that they live in their own separate context. Nowhere is this as evident as the internet.

When a simple text will not do to express one’s indifference about where to have lunch, a savvy smartphone user may open a “gif” database app, type in their current feeling, and ultimately send an image of Judy Garland happily mouthing the text below “I don’t care!” Or to express ones shock regarding the tale of a friend’s paper cut: Jimmy Stewart dramatically fainting. It is safe to assume to that the target youth audience for such apps have little awareness of the classic films where these scenes originated (In the Old Good Old Summer Time and Mr. Smith Goes to Washington, respectively). And that’s the point. The distance and randomness makes it absurdist fun. The reference lives on its own in a new context. The same can be said of memes (the stagnant brother to the gif) as well as the more widespread sound-bites and video-bites that dominate our political discourse.

Legos, the iconic children’s building blocks from Denmark, were once limited to living in plastic pins under bunk beds, but now live on computer, television, and movie screens as reincarnations of pop-cultures most famous characters. The Lego Group turned its slumping sales of the 1990s around in-part by embracing relationships with other kid-friendly brands. Today that merchandise itself is the star. Just look to LEGO Harry Potter videogames, LEGO Star Wars the television series, and The LEGO Batman Movie, itself a spin-off of The LEGO Movie. The LEGO entertainment brand shares a similar absurdist playfulness as the meme culture by again and again making the viewer aware that the world they are watching is not the original source but a wonderfully silly version where the content is as hallow as the blocks creating it.

Post-post-modern thought has even seeped into more conservative American culture. Just look at the blockbuster Broadway hits of the last few decades: Wicked, an adaption of Gregory Maguire’s novel, a re-telling of L. Frank Baum’s The Wizard of Oz, that visually heavily relies on the classic MGM film; Avenue Q, a Sesame Street lesson about the real-world for post-college grads; Hairspray, a movie turned into a stage musical turned into a movie musical turned into a live” television event”; and now Hamilton.

 In Hamilton the referential and sampling dependent genre of hip-hop is put on stage dripping with musical references ranging from Gilbert & Sullivan’s operettas to Biggie Smalls’ rhymes. Even its “color-blind” casting has transcended to “color-conscious” casting, where the white founding fathers are played by people of color without comment, showing that this history is just as much theirs.

Whether it is low or high, for adults or children, culture is now full of references and cross-references. Some of this could arguably stem from postmodern thought’s emphasis on irony, parody, and satire. However, in the post-post-modern world, as references get more crossed and further removed from their source, our understanding between irony, parody, and satire has muddled, though our desires for such references have not.

Coinciding with the culture’s referential nature, intellectual property rights have expanded, especially in trademark law. These two developments appear to be in some conflict: the general public’s feeling anything is fair game for a reference and businesses wanting control over anything connected to their brand, including the public’s references.

In the past eighteen months, two significant decisions have been handed down, involving similar fact patterns related to junior users’ parodies of senior users’ trademarks. However, the outcomes of the decisions seem to point to polar opposite thoughts about the overlap of First Amendment free speech rights and trademark rights.

The first and second part of this article will review both decisions: (1) Radiance Found. Inc. v. NAACP and (2) New York Yankees P’Ship v. IET Products and Serv., Inc. The third part of this article will critique the cases and argue that the current trademark doctrine for expressive uses, including parody and political speech, produce correct outcomes for trademark infringement analysis but inadequate outcomes for dilution analysis due to the far too narrow view of what uses constitute protectable speech in dilution doctrine.

99 J. Pat. & Trademark Off. Soc’y 460(2017)

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