This Slogan Isn't Necessarily for You

By Denniston, Lyle | American Journalism Review, March 1995 | Go to article overview
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This Slogan Isn't Necessarily for You

Denniston, Lyle, American Journalism Review

The First Amendment rights of parodies don't always outweigh trademark protection.

The symbols and images that advertising and PR make famous often become part of the visual language of society. That makes them fair game for editorial cartoonists and satirists. Recently, for example, the Boston Globo's Daniel Wasserman poked fun at politicians in a cartoon featuring not one but two such symbols: R.J. Reynolds Tobacco Co.'s ad icon Joe Camel and Sesame Street's Big Bird.

Such imitations are not always taken as flattery by the companies that footed the bill to create the originals, and lawsuits sometimes result.

There is always a legal risk in borrowing someone else's creativity because of copyright and trademark laws. Copying or caricaturing a famous symbol is not always illegal, though, because the Supreme Court treats parody as a form of expression entitled to some First Amendment protection.

The court made that point emphatically dear in 1988 when it nullified a $200,000 verdict that the Rev. Jerry Falwell had won from Hustler magazine for a parody suggesting that the evangelist had sex with his mother in an outhouse.

But a problem remains: The Supreme Court has not made clear when First Amendment rights outrank copyright or trademark protection. As a result, judges on lower courts act as art, literary or music critics, figuring out when a parody goes too far to copy or to tarnish an original.

Consider some of the cases that have passed through the Supreme Court:

* L.L. Bean, Inc., the Maine mail-order company that sells outdoor gear and clothing, claimed it was wronged by an ad parody in High Society, an adult magazine. The magazine twitted L.L. Bean by publishing an "L.L. Beam Back-to-School Sex Catalog." Bean lest in a lower court and the Supreme Court rejected the company's appeal in 1987.

* Franklyn Novak, a Minneapolis artist and writer, was barred by a court from marketing T-shirts, sweat-shirts, caps, buttons and coffee mugs with the logo "Mutant of Omaha." That was a takeoff on the famous name of insurance giant Mutual of Omaha. Novak used the logo as a commentary against nuclear war. A lower court rejected his First Amendment challenge, and the Supreme Court would not hear his appeal in 1988.

* Anheuser-Busch lost a trademark infringement claim against a college student, Michael Berard, over his sales of T-shirts in Myrtle Beach, South Carolina. He used a takeoff of the Budweiser boer slogan, changing the wording to "This Beach is for You!

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This Slogan Isn't Necessarily for You


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