Freedom of expression means that the government doesn’t interfere with an individual’s right to express their thoughts or feelings, so long as the expression doesn’t invoke or cause any immediate harm or danger. You can’t yell “fire” in a crowded theater, but you can create an entire three-act opera making fun of a public figure or a publicly known entity. Hence, in situations like these, satire can be fair use of someone’s trademark.
What exactly is satire?
Satire is mimicking another’s likeness or work with the intent to criticize and ridicule the mimicked as social commentary, and as a way to benefit society. For example, Saturday Night Live often uses satire to make social commentary about politicians, businesses, products, cultural mores and social customs. The ridicule is intended to provoke thought or to promote a certain point of view.
How is satire considered fair use?
The federal courts, in interpreting the Constitution, have been very careful to protect the rights of trademark holders while not infringing upon individual’s rights to free expression. Satire, including forms of satire like parody, ultimately expresses the satirist’s point of view. Thus, to make all third party use of a trademark forbidden is to also make commentary about what that trademark represents forbidden. Intellectual property laws only protect the right to do business and make money through a trademark; they don’t protect against ridicule or public opinion.
Federal courts have defined parody as follows:
For trademark purposes, “[a] `parody’ is defined as a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner … A parody must convey two simultaneous — and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody.” People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 366 (4th Cir. 2001). This second message must not only differentiate the alleged parody from the original but must also communicate some articulable element of satire, ridicule, joking, or amusement. Thus, “[a] parody relies upon a difference from the original mark, presumably a humorous difference, in order to produce its desired effect.” Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir.1987) (finding the use of “Lardashe” jeans for larger women to be a successful and permissible parody of “Jordache” jeans).
Can satire be used for commercial reasons?
This depends on what the commercial reason is, but largely, it’s not fair use to borrow extensively from someone else’s trademark or work in order to invoke an idea of something entirely different, whether it’s for profit or not. That’s called infringement. For example, a school not affiliated with Disney may not call itself “Disney’s Daycare,” and use a silly Disney character motif; that would not be satire.
Satire instead invokes the idea of the thing that’s been trademarked. For example, the documentary Supersize Me uses McDonald’s trademarked “Supersize” but to ridicule and criticize the business model of selling a high quantity of food at once.
Is it satire if the work is simply disparaging the trademark?
It’s not satire to simply disparage a trademarked entity. However, each case is different, and what may be unfair in one instance may be fair in another. Satire has to have a greater purpose for the ridicule, such as informing people, commenting on social problems, or bettering society, whether or not the satirist’s opinion is popular. Disparagement without any social commentary or attempt to inform isn’t satire.
It may instead be infringement if the trademark is used to invoke the idea of the trademarked business, product, or service and make fun of it in an attempt to dissuade people from using it. It may also be defamation if what is said is untrue.
It’s always best to check with an intellectual property lawyer to ensure that your work of art is just that, and not an invitation to a federal lawsuit. An intellectual property attorney knows the rules of fair use and can advise you on the best ways to express yourself without infringing on another’s mark.  If you would like guidance in your situation, please call our trademark lawyers at 888-666-0062 to schedule a consultation.
 
 
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
 
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