May 7, 2010
One Person's Parody Is Another Person's Lawsuit
One Person's Parody Is Another Person's Lawsuit Cliff Ennico www.creators.com "I'm looking for creative ways to advertise my business on YouTube, MySpace and other 'social networking' Websites. One idea I had was to do video parodies of my competitors' advertising - my brother's a successful stand-up comedian and has come up with some hilarious ideas that I know would attract viewers on these sites. I really don't want to be sued, though. Do you have any suggestions?" There are two basic things you need to know about parodies and satires, from a legal point of view: parody is a form of protected expression under the First Amendment to the U.S. Constitution (which, among other things, guarantees "freedom of speech"); if the person or company you're making fun of doesn't like your parody, they will sue your pants off anyway, forcing you to spend tons of money in legal fees so you can assert and defend your First Amendment rights. Don't get me wrong - an advertising parody, when done the right way, can be an extremely compelling and entertaining way to get your marketing message across, especially in these days of "viral" marketing where everyone (it seems) is e-mailing video clips to everyone else saying "hey, you gotta look at this!" If done the wrong way, though, your parody may cost you your business, your house, and your sanity. There are a number of ways you can get into legal trouble with parodies and satires. Here are some of the more common ones: Copyright Infringement. If you're going to parody someone else's work, you have to be sure the parody is all your original work and content. DO NOT "cut and paste" your competitor's advertising without their consent (which, of course, they won't give). For example: you make a copy of your competitor's television ad and change the audio track so that the actors/characters in the ad are saying silly things - the competitor probably will sue you for "copyright infringement"; you shoot your own television ad from scratch, following the overall "story line" of your competitor's ad (not the actual word-for-word dialogue) but using children or dogs instead of grown-up actors for humorous effect - as you did not use any of your competitor's copyrighted content, their lawsuit for copyright infringement probably won't be successful. Defamation, a/k/a "Libel" . If your parody contains false or misleading statements about the competitor that are intended to injure their reputation (and pray tell, when does someone do a parody for reasons OTHER THAN injuring someone's reputation?), you are likely to be sued for libel. If the person you're sending up is a politician, movie star or other "public figure", you will have a strong defense on First Amendment grounds, as these people have to prove you acted with "actual malice" in creating the parody - a very difficult burden of proof. If, however, the person you're parodying is a local competitor, a court will probably view him or her as a "private figure", and they will have to prove only that you were negligent in creating a parody that harmed their business. "Misuse of Trade Dress" . Make sure your video is clearly and obviously recognized as a parody. If you do TOO good a job at copying your competitor's content, people may mistake your "parody" for the real thing (i.e. they will think that it actually is your competitor's ad) and the competitor will sue you for "misuse of trade dress" (also sometimes called "trade dress infringement"). Invasion of Privacy . If your parody calls people's attention to a fact about your competitor that he or she wouldn't want to be made public, you could be opening yourself up to an "invasion of privacy" lawsuit. For example, if your parody shows a monkey removing an extremely ugly toupee from an actor who is impersonating your competitor, and your competitor (unbeknownst to you) actually wears a hairpiece, you may be sued for advertising to the world that your competitor is bald. One more thing: in the words of Irish author Brendan Behan, "there is no such thing as bad publicity, except your own obituary". If your parody is really good, it may actually backfire on you by reinforcing your competitor's advertising in the public mind. The good news is your competitor won't sue you; the bad news is your competitor will make tons more money off of your parody than you will. For an excellent Website offering legal information and guidance to parodists, go to www.chillingeffects.org . Cliff Ennico ( cennico@legalcareer.com ) is a syndicated columnist, author and host of the PBS television series 'Money Hunt'. His latest book is 'Small Business Survival Guide' (Adams Media, $12.95). This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com . COPYRIGHT 2007 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE, INC. Permission granted for use on DrLaura.com.

Posted by Staff at 1:49 AM