When is parody infringement?

[Harold Mansfield]

There was a comment on another thread about whether or not you should worry about a cease and desist for parody site. That "they" wouldn't go after a small "fan" site. That the fan site is doing them a favor by giving them free press and attention.

OK, here's the thing.

If I had $1 for everyone who said this, I'd be wealthy.

First thing, it's not your call that it's OK because you're "giving" someone free press. Obviously they don't need your free press because you're piggy backing on them. Not the other way around. Bottom line is you can't be sure if they will or won't. Using someone's trademarked name is a definite no-no and anyone who is serious about protecting their brand will come after you no matter how small you are.

You're not doing them a favor. You're doing yourself a favor. They have a marketing team.

If you want to "give" them press, just ask. Most people or companies of any significance have press packs and updates that they gladly send to anyone who asks. No one takes kindly to anyone just taking what they want from their website and putting it on another website. The size of your operation is not the point.

Second thing is...if you try to make money on it, they will come after you. Having a gossip or niche blog that speaks about a variety of things is much different than having a site dedicated to one person, using all of their images, their name, and then trying to make money with it.

Yes fan and parody sites exist and most are harmless and allowed to exist. Where they run afoul is when they try to make money. Just because you see something online doesn't mean it's legal. It's the WORLD wide web. Not the United States web. Plenty of law breaking websites are hosted offshore and out of reach of the America legal system.

If you really have respect for the person that you're claim to be helping, you'd insure that you aren't infringing on their trademarks for personal gain and maybe even contact them. You'd be surprised how accommodating people and companies can be if you simply just ask.

[Brian Altenhofel]

Guessing the referenced thread was deleted for some reason?

"Parody" has a very specific legal definition. Most figures do not appreciate parodies, but some are overly aggressive in protecting their image because they know that most operators of parody sites are little guys who will either cower in fear at a cease and desist notice or not have the financial resources to navigate the legal system.

You can make money off of parodies...

[Business Attorney]

Parodies and fan sites both fall under the broader category of "fair use" under copyright law in the United States.

First, not every country has a fair use exception in their copyright laws, so depending on where the copyrighted material is re-published or used, there may not even be a colorable claim that you have a legal right to use the material.

Second, whether a use constitutes a parody or other fair use is not a bright line test but depends on the specific facts and circumstances. Simply applying a self-serving label to your use does not make it so.

There is no "fair use" exception under trademark law. Generally, the test is a "likelihood of confusion" as to the origin of a product or service. As an initial matter, if there is no likelihood of confusion, there is no trademark infringement. That is why someone can write an article or blog post about a company and repeatedly use its trademarks. I can write factual articles about Mickey Mouse or Star Wars and have no fear that I will get a cease and desist letter. The same goes for articles about celebrities. They can't stop People magazine, the New York Times, TMZ or Bob's Blog from writing articles (and selling ads, by the way). Where fan sites rub afoul, when they do, is devoting the site to a particular celebrity, perhaps in direct competition with the celebrity's own site. That may create a likelihood of confusion or, more likely, infringe on the celebrity's right of publicity (http://www.illinoisbusinessattorney.com/articles/privacy_rights.html).

A trademark can also be a "work" that is protected by copyright and there are other legal causes of action that a trademark owner might successfully use to keep someone from misappropriating its trademark, even if there is no likelihood that a consumer would be confused as to the origin of the product or service. As I mentioned above, individuals (but not companies) also enjoy a "right of publicity" in many states.

The bottom line is that when trying to profit off another individual's or company's fame, you need to be careful to live within the bounds of the existing legal framework or you risk losing everything you are building and perhaps even more.