But It’s A Joke! Balancing The Interest Of Parodists Against Copyright And Trademark Owners Without Clear Guidelines

The essence of a parody is that it imitates the characteristic style of an author or a work for comic effect or ridicule. Its effectiveness depends on its ability to make the object of its criticism recognizable to the audience. Most parodies therefore quote or distort the original work’s memorable features. Most contemporary works enjoy protections against unauthorized copying. Even the copyright law recognizes, however, that certain unauthorized uses of copyrighted works may be considered "fair."

A parody is generally considered a fair use, provided it meets the statutory test of Section 107 of the Copyright Act. Similarly, most companies distinctive trademarks and logos enjoy projections against unauthorized uses by others, particularly competitors. The Lanham Act prevents one company from using the trademark or logo of another company if that use will create a likelihood of consumer confusion as to the source, sponsorship, or endorsement of its goods or services. Unlike copyright law, there is no "parody" defense to trademark infringement or dilution. Under both copyright and trademark law, the determination of whether the use of another’s intellectual property constitutes an infringement or a permissible parody is extremely fact specific. How does a legitimate parodist know whether she has copied a permissible amount of her target’s work, or too much? It appears that the parodist cannot know for certain until a court provides the answer.

This article analyzes recent judicial decisions that attempt to balance the rights of parodists against those of copyright and trademark owners.