The Imaginary Trademark Parody Crisis (and the Real One)

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. INTRODUCTION ................................................................................ 714 I. THE LESSONS OF CAMPBELL .................................................. 716 A. Parody Is Valuable ............................................................... 717 B. Parody Is Tricky ................................................................... 719 C. Parody Doctrine Should Serve the Purpose of IP................. 724 II. JUDGES GETTING IT RIGHT .................................................... 728 A. Parody Cases Are Rare and Losses Are Rarer ..................... 728 B. There Is No Consistent Reason for the Losses ..................... 733 III. MARKHOLDERS GETTING IT WRONG .................................. 739 IV. RESPONSES TO THE REAL TRADEMARK PARODY CRISIS ........................................................................................... 745 CONCLUSION .................................................................................... 753 * Associate Professor and Vance Opperman Research Scholar, University of Minnesota Law School. I appreciate helpful comments from Mark Lemley, Mark McKenna, Lisa Ramsey, Zahr Said, Jessica Silbey, Rebecca Tushnet, and participants in the 2015 Works in Progress in Intellectual Property Conference sponsored by George Washington University and the U.S. Patent and Trademark Office. I received valuable research assistance from Ann Motl and the staff of the University of Minnesota Law Library.