The Imaginary Trademark Parody Crisis (and the Real One)

43 Pages Posted: 26 Jan 2017

See all articles by William McGeveran

William McGeveran

University of Minnesota Law School

Date Written: 2015

Abstract

In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and other speech. Demand letters and other pre-litigation maneuvering by markholders exemplify the real crisis in the law of trademark parody. Reform should concentrate on making excessive threats against speech less effective. I argue that fast-lane defensive doctrines that reduce the burden of litigating parody cases, such as safe harbors and a broad artistic relevance test, are more important than perfecting substantive parody doctrine. Meanwhile, we should shout the truth from the rooftops: Markholders who sue legitimate parodies lose. Their threats are empty.

Keywords: Trademark, Parody

Suggested Citation

McGeveran, William, The Imaginary Trademark Parody Crisis (and the Real One) (2015). Washington Law Review, Vol. 90, No. 2, 2015; Minnesota Legal Studies Research Paper No. 17-01. Available at SSRN: https://ssrn.com/abstract=2905984

William McGeveran (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://blogs.law.harvard.edu/infolaw

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