Apropos the JibJab controversy, reader James Barnett asks:
Did the JibJab parody violate any laws regarding the unauthorized display of corporate logos?
I’m assuming, of course, that they didn’t ask for Wal-mart’s or McDonald’s permission to include the store logos that pop up behind the American Indian.
The answer is “no.” As a general matter, people can use others’ trademarks in their movies, books, and the like, unless a reasonable buyer would be misled into thinking that the trademark owner endorses the work. At least when the item appears inside the work (as opposed to being on the cover, where casual browser might be more likely to be misled in at least some situations), that’s pretty unlikely. And that’s true whether the work is humorous or serious, except when a parody is so deadpan and so subtle that a casual buyer might be fooled. (JibJab seems to have altered all or most of the logos it uses, which helps prevent people from inferring that the trademark owners endorse the JibJab movie; but that isn’t strictly necessary, which is why an author of a serious book can speak of someone drinking a Coke or driving a Mercedes without having to come up with fictional soft drinks or cars.)
In this respect, trademark law is a weaker intellectual property right — and a lesser (though not nonzero) interference with writers’ and moviemakers’ ability to create new works — than is copyright law. Copyright law applies without regard to whether consumers will likely be confused by the use of another’s work.
Ah, the savvy reader might ask, but what about a trademark that’s also a copyrighted work, because it has a substantial and complex graphical dimension to it? A simple word can’t be protected by copyright (though it can be a trademark), and probably even the McDonald’s golden arches are too simple a graphical image to be protected by copyright (though again it is a trademark). But what if there’s an image, such as Mickey Mouse’s head that’s complex enough to be both a copyrighted work and a trademark?
There, the owner of the mark might have a copyright claim — but when the mark is being referred to as a symbol for something that the new work is commenting on or criticizing, then the fair use defense would probably be pretty effective. In any case, though, the golden arches (plus the word McDonald’s) or the WalMart sign are likely only protected by trademark law, not copyright law, and therefore they can be pretty freely used inside movies, books, and the like.
The above is something of an oversimplification, but the best I can do in a few paragraphs.
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