Intellectual Property Law

Brilliant New York Times Parody: Legal?

By Tim Armstrong, Derek Bambauer, and William McGeveran.

There is a terrific parody (or, perhaps, satire) of the New York Times available both in cyberspace and in print (over a million copies were distributed in cities nationwide, mostly New York and LA). (The Times is calling it a “spoof.”) This is detailed, careful artistic work: if you explore the site, you’ll see that the fake content goes several levels deep, and even knocks off the ads one commonly finds in the Times (or on New York subways). Here’s the rub: is it legal?

On copyright grounds, I think the spoof is safe, but it’s a close call. If it’s a parody of the Times, then the fake version is a fair use (after Campbell v. Acuff-Rose, parody is essentially paradigmatic fair use). If it’s satire: well, that’s a different story. The Ninth Circuit didn’t think it was fair use when The Cat NOT in the Hat! made fun of O.J. Simpson using rhyming, Seussian doggerel. Satire, courts seem to think, is gratuitous: it uses someone’s artistic creation (copyrighted) to poke fun at a different target altogether. Since the choice of weapon is nearly arbitrary, the resulting work infringes. Of course, the analysis gets harder when, as here, the accused parody makes fun both of its host and of society at large.

On trademark grounds, it’s less clear. The trademark doctrine of fair use (better called descriptive fair use / nominative use) is far less forgiving of infringement, even for parody, than copyright’s analog. When the parody confuses consumers, there’s essentially a sliding-scale, tradeoff analysis of the public interest in free expression against the public interest in avoiding consumer confusion. The challenge is that a socially critical work like the one here depends on (briefly) confusing consumers. If someone handed you a paper called “The Daily Ridicule,” with the headline “Iraq War Ends,” you’d probably throw it away. But when it’s the Times, with the same headline, you’re briefly thunderstruck, and you read it (and then throw it away). That moment of confusion - of Zen-like unmooring of assumptions - is precisely what makes this piece work and what creates risk under trademark law.

So, I’m waiting to see if a lawsuit comes out of this. This is social criticism at its most biting. IP law shouldn’t prevent it.

[Update - 2:40PM - I shamefully forgot to hat-tip Ken Marx. Also, we could talk about whether the spoof is a "use in commerce," but use is too painful to spend a lot of blog space on. I think it could cut either way, depending on one's sympathy towards parodies and one's views on TM use generally.]

Full post as published by Info/Law on November 13, 2008 (boomark / email).