Jarod, you'd like this.
No joke: Supreme Court case could take a big bite out of the First Amendment
The court system often is where humor goes to die. For those seeking to use satire or parody of corporations, jokes often run into trademark or other lawsuits and result in a little more than “ha, ha, thump.”
The same bad audience could await the defendant in*Jack Daniel’s Properties Inc. v. VIP Products LLC. The Supreme Court just accepted a case involving a tongue-in-cheek dog chew toy made to resemble a Jack Daniel’s whiskey bottle. VIP prevailed in defending the toy as protected speech, but the distiller wants the Supreme Court to declare such parodies to be trademark violations.
The docket this term is actually a hoot of parody cases.
Another pending case is*Novak v. City of Pharm,*in which Anthony Novak was prosecuted for posting a parody of the website of his local police department.*He was charged with (and later acquitted of) a felony under an Ohio law prohibiting the use of a computer to “disrupt” or “interrupt” police functions.
The court has yet to decide whether to take the Novak case, but it has accepted the Jack Daniel’s case.*The distiller sued VIP over its introduction of the Silly Squeakers “Bad Spaniels” rubber squeaky toy. The toy is shaped like a whiskey bottle with a cartoon spaniel on the front and the caption: “Bad Spaniels, the Old No. 2, on your Tennessee Carpet.” On the back is a small disclaimer reading: “This product is not affiliated with Jack Daniel’s Distillery.”
That clearly was not enough for the distillery, which argued that people would be confused by the parody. While the district court originally ruled with Jack Daniel’s, it was reversed by the U.S. Court of Appeals for the Ninth Circuit. The chew toy was ruled (correctly, in my mind) to involve “new expressive content” and to be protected under the First Amendment.
The Supreme Court has recognized that satire and parody have long played a key role in political discourse stretching back to ancient Greece. In 1988, the court handed down the important free-speech decision in*Hustler Magazine v. Falwell, holding that an offensive cartoon of Rev. Jerry Falwell was protected under the First Amendment from civil liability.
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However, the distiller is advancing a claim that would chill the use of any common image in a parody or satire, even though no reasonable person would confuse the products.
The court’s term could prove to be the most important docket on parody and satire in decades. It may prove less protective on trademark actions (like Jack Daniel’s) than criminal matters (like Novak). However, this involves more than a canine chew toy — it will impact a wide range of creative expression using common cultural images or references.
No joke: Supreme Court case could take a big bite out of the First Amendment
The court system often is where humor goes to die. For those seeking to use satire or parody of corporations, jokes often run into trademark or other lawsuits and result in a little more than “ha, ha, thump.”
The same bad audience could await the defendant in*Jack Daniel’s Properties Inc. v. VIP Products LLC. The Supreme Court just accepted a case involving a tongue-in-cheek dog chew toy made to resemble a Jack Daniel’s whiskey bottle. VIP prevailed in defending the toy as protected speech, but the distiller wants the Supreme Court to declare such parodies to be trademark violations.
The docket this term is actually a hoot of parody cases.
Another pending case is*Novak v. City of Pharm,*in which Anthony Novak was prosecuted for posting a parody of the website of his local police department.*He was charged with (and later acquitted of) a felony under an Ohio law prohibiting the use of a computer to “disrupt” or “interrupt” police functions.
The court has yet to decide whether to take the Novak case, but it has accepted the Jack Daniel’s case.*The distiller sued VIP over its introduction of the Silly Squeakers “Bad Spaniels” rubber squeaky toy. The toy is shaped like a whiskey bottle with a cartoon spaniel on the front and the caption: “Bad Spaniels, the Old No. 2, on your Tennessee Carpet.” On the back is a small disclaimer reading: “This product is not affiliated with Jack Daniel’s Distillery.”
That clearly was not enough for the distillery, which argued that people would be confused by the parody. While the district court originally ruled with Jack Daniel’s, it was reversed by the U.S. Court of Appeals for the Ninth Circuit. The chew toy was ruled (correctly, in my mind) to involve “new expressive content” and to be protected under the First Amendment.
The Supreme Court has recognized that satire and parody have long played a key role in political discourse stretching back to ancient Greece. In 1988, the court handed down the important free-speech decision in*Hustler Magazine v. Falwell, holding that an offensive cartoon of Rev. Jerry Falwell was protected under the First Amendment from civil liability.
...
However, the distiller is advancing a claim that would chill the use of any common image in a parody or satire, even though no reasonable person would confuse the products.
The court’s term could prove to be the most important docket on parody and satire in decades. It may prove less protective on trademark actions (like Jack Daniel’s) than criminal matters (like Novak). However, this involves more than a canine chew toy — it will impact a wide range of creative expression using common cultural images or references.