Testing Tarnishment in Trademark and Copyright Law: The Effect of Pornographic Versions of Protected Marks and Works

Abstract

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that ‘tarnish’ a trademark. Copyright owners also articulate fears of ‘tarnishing’ uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of a work will find the tarnished work less valuable afterwards. This Article presents two experimental tests of the tarnishment hypothesis, focusing on unauthorized and unwanted pornographic versions of targeted works. We exposed over 1000 subjects to posters of pornographic versions of popular movies and measure their perceptions of the targeted movie. Our results find little evidence of tarnishment, except for among the most conservative subjects, and some significant evidence of enhanced consumer preferences for the 'tarnished' movies. These results should place the burden on parties asserting tarnishment to prove that it actually exists, and they support changes to trademark and copyright laws with respect to proof of harm, fair use, and copyright term extension.

Keywords: tarnishment, dilution, copyright, infringement, parody, satire, survey, empirical, intellectual property, experiment