Parody as a Protected Form of Speech

Targets of criticism seek to shut down Internet sites that poke fun.

By Jamin B. Raskin

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In the new American economy, where ideas, images and information are of central importance, many institutions and persons are trying to use the law to stop others from criticizing them or even using their names without their consent.

The Bush for President campaign unsuccessfully tried to shut down an anti-Bush website called GWBush.com and then unsuccessfully tried to force it to register as a political committee. Harvard University wants to shut down NotHarvard.com, alleging trademark infringement. In April, Pets.com, an online pets-products company, actually brought a lawsuit against Robert Smigel, a former chief writer with "Late Night With Conan O'Brien," for defaming the company's canine mascot with his comic late-night parody based on the profane adventures of Triumph the Insult Comic Dog.

Thus, one major impulse in the new intellectual property economy is for everyone to seek the right to own absolutely their own names, to stop other people from mentioning them and to turn all criticism and parody into a form of actionable defamation.

First Amendment at Issue

All of this would be fine and seems perfectly reassuring when we think about ourselves as the victims. But this trend overlooks one little thing: the First Amendment to the Constitution.

People have a constitutional right to criticize George W. Bush and to use his name in the process. That is part of what the American Revolution was about: the right to criticize government and political leaders. Under our First Amendment, there can be no crime of seditious libel.

Standards for Defamation

As President Clinton found out, citizens can malign, disparage and lampoon public figures. Under New York Times v. Sullivan and Falwell v. Hustler Magazine, speech that is critical of public figures only loses its First Amendment protection if it contains a false statement of fact, the falsehood is uttered deliberately or with recklessness as to its veracity, and the speech ends up defaming and injuring the figure's reputation or intentionally inflicting emotional distress. In other words, speech involving public figures, including parody and caricature, is constitutionally protected unless the speaker is deliberately or recklessly lying about a public figure.

Private figures--people who have not carved out a public role for themselves in some context--have more protection as they can bring defamation actions when a defamatory lie is uttered even negligently. This seems only fair and does not threaten basic democratic values.

Trademark and Copyright

The courts should also curb the extravagant use of the trademark and copyright laws to try and stifle criticism. Trademark laws are designed principally as a consumer protection device to keep consumers from being confused when a business tries to use a competitor's trademarked insignia or design in commerce.

The trademark laws, in a constitutional sense, cannot be used to stop comparative advertising, clever website names, or a union's criticism of a trademarked company logo or product. As long as there is no consumer confusion present and no one thinks that they are getting a Harvard education, what right does Harvard have to enjoin the existence of Notharvard.com? None of us owns the language or any words that are within it.

Fair Use Exception

Nor can we keep others from making fun of our work. The copyright laws contain an exception for "fair use," which means that other citizens can selectively quote or excerpt short parts of copyrighted works for the purposes of criticism, academic analysis and public discussion. The Supreme Court found in 1994 in the 2 Live Crew case (Campbell v. Acuff-Rose Music Inc.), which dealt with a rap band's vulgar take on Roy Orbison's song "Pretty Woman," that parody of other people's work is protected under the copyright laws and the First Amendment.

In short, while we cannot steal other people's work and republish it as our own or pretend that we are actually someone else's company in order to make a buck, we have a right to talk about other entrants in the worlds of ideas and commerce. We also have a right to criticize and disparage. After all, if we have a constitutional right to burn the American flag, doesn't it follow that we must also have a right to burn the flag of something even as sacred as the flag of McDonalds?

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