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Law 227: Trademarks & Unfair Competition Rights of Publicity; Parody July 14, 2009 Jefferson Scher
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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
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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...
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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
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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
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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)
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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
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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
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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
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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
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TM & Unfair Comp — Up Next Topics and Reading for Day 13 Internet Domain Names Chapter 11, pp. 739-815 Chapter 12, pp. 896-911 Supplement pp. 79-91 Online: optional reading
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