Law 227: Trademarks & Unfair Competition Rights of Publicity; Parody July 14, 2009 Jefferson Scher

TM & Unfair Comp — Day 12 Agenda Parody of Marks and Dress  Literary, musical, artistic works  Other merchandise and advertising Rights of Publicity  Action for use of look-alike/sound-alike  Humor/parody contexts  Movie/song titles

Parody Goods Goods Poking Fun / Commenting via Humor How about parody trading cards?  Mid-1970s Topps “Wacky Packages” cards included in packs of gum  Many simply harmless fun...

Parody Goods Goods Poking Fun / Commenting via Humor Some of the cards could be harmful to reputation, even tarnishing  Minute Rice rendered as Minute Lice  Ultra Brite rendered as Ultra Blight  Morton Salt rendered as Moron Salt  Gravy Train rendered as Grave Train

Parody Goods Goods Poking Fun / Commenting via Humor Literary parodies  Cliffs Notes v. Bantam Doubleday  Anheuser-Busch v. Balducci Pubs.  Yankee Publishing v. News America Musical and artistic parodies  Mattel v. Universal Music (MCA)  Mattel v. Walking Mountain

Parody Goods Goods Poking Fun / Commenting via Humor Other merchandise and advertising  Mutual of Omaha v. Novak  Smith v. Wal-Mart Stores  MasterCard v. Nader 2000 Primary Committee  MGM-Pathe v. Pink Panther Patrol Domain names (Thursday)

Right of Publicity Property Interest in Personality Multiple bases for protection  Lanham Act: prevent false endorsement  State privacy statutes: prevent commercial use of name or likeness  Common law right: at the extreme (the 9th Cir. interpolation of California law), prevent almost anything that evokes a celebrity’s identity

Right of Publicity Property Interest in Personality — Scenarios Use of look-alike or sound-alike  “Woody Allen” ad for video rental store  “Bette Midler” singing in car commercial  “Astrud Gilberto” eating Lay’s, singing along with The Girl from Ipanema

Right of Publicity Property Interest in Personality — Scenarios Humor/parody context  Robot “Vanna White” in electronics ad  Parody baseball trading cards (e.g., “Treasury Bonds”) Titles of works  “Ginger and Fred”  The Scott O’Grady Story

Right of Publicity Property Interest in Personality — Scenarios Depicting or describing an event  1998 Masters Golf Tournament  “The Perfect Storm” Take-away  Use in advertising is the least defensible  Even in other contexts, be careful because the balancing is subjective

TM & Unfair Comp — Up Next Topics and Reading for Day 13 Internet Domain Names  Chapter 11, pp  Chapter 12, pp  Supplement pp  Online: optional reading