Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 26, 2014

The First Amendment, Trademark Law, and Parody

Charles E. Colman, New York University School of Law & NYU Steinhardt Department of Visual Culture: Costume Studies, is publishing Trademark Law and the Prickly Ambivalence of Post-Parodies in volume 163 of the University of Pennsylvania Online. Here is the abstract.

This essay examines what I have termed “post-parodies” — specifically, in the context of apparel.  This “DIY” fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex, layered forms of expression.  I examine the historical and cultural circumstances giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence.
Unfortunately, trademark law’s current doctrine governing trademark “parodies” cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a cramped view of “worthy” expression.  I argue that trademark law is asking the wrong questions — at least, if it hopes to adjudicate the lawfulness of post-parodies in a meaningful way — and that current parody doctrine must be supplanted by a more thoughtful and nuanced framework.
“[What most prevents us] from grasping what people are up to is not [so much] ignorance as to how cognition works . . . as a lack of familiarity with the imaginative universe within which their acts are signs.” Clifford Geertz, The Interpretation of Cultures 13 (1973).
“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.” Yankee Publishing v. News America Publishing, 809 F. Supp. 267, 280 (S.D.N.Y. 1992) (Leval, J.).

Download the article from SSRN at the link.

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