Legal Considerations When Consumer Opinion Web Sites Parody Companies or Brands

Article excerpt

As the Internet has become a "modern symbol of the classical market of ideas," (1) consumer opinion sites that parody companies or brands have become popular in the cyberspace. This article examines various legal issues and cases that might be applicable to parody sites in the light of copyright laws, trademark laws, libel laws, and service provider liability. Looking at a possibility that parody sites can lie in the tension between free speech rights, intellectual property interests, and libel issues, this article discusses how parody sites can enjoy First Amendment freedoms by avoiding legal pitfalls.

"The explosion of the Internet is not without its growing pains. It is an efficient means for business to disseminate information, but it also affords critics of those businesses an equally efficient means of disseminating critical commentary." (2)

The term "parody" originated from the Greek word parodeia, which means "a song sung alongside another." Parody, as a form of artistic expression, is "a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule." (3) It is a very effective literary form that can be used to criticize, satirize, and ridicule a target. Parody sites have become popular in cyberspace. The World Wide Web and digital manipulation technology provide Internet users with opportunities to create parody sites for use as a critical forum. By way of ridicule and imitation, parody sites can be embodied as political sites (4) or consumer opinion sites. (5)

As with political parody sites that try to expose politicians' questionable practices, consumer opinion sites have become both easy and popular ways for unsatisfied consumers to criticize, complain, and parody companies. (6) In the days before the Internet, consumers unsatisfied with a company had little recourse for their complaint; today, the Internet has empowered consumers. As commercial transactions in cyberspace increase, the ability for consumers to publish their complaints increases. The Internet has become a "modern symbol of the classical market of ideas." (7)

As the U.S. Supreme Court in Hustler Magazine v. Falwell (8) declared, parody is protected speech under the First Amendment. However, the precise boundaries of legitimate parody sites sometimes are difficult to define. (9) The ways in which parody sites can be protected under the First Amendment differ according to the type of speech involved. (10) Under the First Amendment, commercial speech usually is less protected than is noncommercial speech. Unfortunately, the distinction between commercial and non-commercial speech is unclear, particularly in the Internet environment. Even though a parody site can be treated as noncommercial speech, it may be involved with intellectual property infringements or defamations. The assertion of "parody" in consumer opinion sites is not a simple answer to this problem. Thus, protection of parody sites may lie in the tension between free speech rights, intellectual property interests, and libel issues. (11)

This article investigates the types of legal aspects that consumers, to enjoy First Amendment freedoms, should consider when using parodies in consumer opinions sites. In conclusion, it discusses how parody sites can enjoy free speech rights and avoid legal pitfalls.

COPYRIGHT ISSUES

Copyright laws usually give a copyright owner the exclusive right to control duplication of writings or other intellectual property. In the United States, the first federal copyright law was adopted in 1790, while current copyright protection was granted by the 1976 Copyright Act. In response to the development of new media technology, Congress and the courts were forced to make changes in the copyright law, and in 1998 Congress made some major revisions. (12)

Fair Use Doctrine

To claim that their copyrights have been infringed, authors must prove: (1) that they originally created the work, (2) that they own valid copyrights, (3) that others had access to their copyrighted work, and (4) that another's work is substantially similar to the original. …