Jack Daniel's at the Court: The End of Parody?
AP Newsroom
After waking up this morning, you probably went on your phone and began to scroll through your feed, coming across a TikTok of Kanye singing “Hey There Delilah”, a drawing of Spiderman in the style of Warhol, and then read a fascinating article from the Onion to make sure you start your day informed. Maybe the algorithm was feeling nostalgic, so it decided to serve you some Key of Awesome clips. The specifics might be different for you, but one thing is clear, parody is everywhere, and more often than not, it is based on another’s creative works.
Parody is generally defined as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule”, and it has long been an important part of human society and creativity. The first recorded parodies occurred in ancient Greece, where playwrights would present “satyr plays” alongside their work, where the characters in the original play are mocked and made comedic. Odysseus became a lunatic and Hercules became a raging drunk. Over the centuries, humans have continued to create parodies, with medieval authors satirizing Canterbury Tales by having the knight valiantly cut a lock of hair off of a maiden. In early America, colonists parodized popular songs in order to make political commentary, a trend which has continued to this very day.
The rise of technology and the internet made parody all the more popular and common. An early 2000’s precursor to the Onion, the Disassociated Press parodized the Associated Press and other news organizations, publishing phony articles like “Blondes Not Protected Group Under Discrimination Law, Federal Court Rules'' and “Prescription Drug Counterfeiters Started With Pencil Shavings, Oregano, FBI Profiler Says”.
A similar instance of political parody landed its creator in some hot water, with no one other than George W. Bush. In the lead-up to the 2000 presidential election, a computer programmer named Zack Exely created a parody of the Republican candidate’s website called gwbush.com, which includes a GIF of Bush picking his nose, a comedically edited photo of “Slim Cheney'', and multiple photos insinuating that Bush was lying about his sobriety. A prime example of online parody, particularly in the late ‘90s, it quickly became popular and was soon on the former Govenor’s radar. In an interesting twist, Bush’s legal team did not attempt to sue Exely on the basis that his website was defamatory, they threatened legal action on the basis of copyright infringement as Exely used images from the official George W. Bush campaign page. Free speech and parody defenders raised the alarm bells, claiming that the campaign was using intellectual property law (which grants creators a form of property rights over their works) in order to silence dissenters and critics. Luckily, the campaign's threats fell short of any real action, preventing the courts from weighing in. That is not the case in regards to Jack Daniel’s vs. VIP Products, a case currently before the Supreme Court which has the power to annihilate the public’s right to parody, specifically when it comes to using trademarked aspects from a brand’s intellectual property.
Trademarks are an integral part of American intellectual property law, as they grant companies the right to control the imagery associated with their brand, such as logos and product design, in order to secure “to the producer the benefits of a good reputation.” This is meant to encourage innovation as it ties specific labels and brandings to specific products, so consumers will be able to identify products that they prefer or dislike more readily. As with most intellectual property law, this does impose limitations on free speech, as it prevents people from utilizing the forms of expression associated with certain brands. However, there are certain exceptions to trademark law that are designed to protect free speech and expression. The Lanham Act states that if a product uses elements of a trademark within the realms of news reporting, non-commercial use, or fair use, then they cannot be found liable for violating the Lanham Act on grounds of customer confusion or brand tarnishment. Under the fair use category, the law notes that “identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner” does not constitute a violation of the Lanham Act. The fair use provision specifically is intended to prevent brands from abusing their trademark ownership in order to suppress parodical speech, but also to insulate other forms of speech. After all, fair use has always existed as a check on IP infringement claims, as it enables others to use copyrighted media in creative, transformative ways without facing penalty.
VIP Products LLC is a major U.S. producer of dog toys, producing typical dog toys in the shapes of monkeys and other animals, as well as a line of parodical toys known as “Silly Squeakers.” The Silly Squeaker line of products are comedic in nature, mainly consisting of chew toys meant to look similar to popular alcohol bottles or soda cans, but turning them into parodical toys by changing the name and branding to animal jokes. Mountain Dew becomes “Mountain Drool”, with the fake bottle featuring a slobbering dog, Kalula becomes “KatHula” and features a cat in a lei, and Fanta orange soda becomes “Panta Dog Drool.” Most relevantly, the company created a toy called “Bad Spaniels”, a riff on the iconic Jack Daniel’s bottle, swapping out mentions of alcohol content to poo content, and “The Old No. 7” with “The Old No.2.” The toys were made with the goal of poking fun at the Jack Daniel’s brands’ seriousness and cultural relevance, as well as people’s relationships with their pets. However, Jack Daniel’s didn’t seem to get the joke.
Petitioner’s Brief in Jack Daniel’s v. VIP Products
Less than a year after the release of the “Bad Spaniels” toy, Jack Daniel’s demanded that VIP stop producing the product, as they believed that the toy tarnished their brand and infringed upon the Jack Daniel’s trademark. More specifically, Jack Daniel’s argues that the Bad Spaniels toy violates the Lanham Act, the major trademark law in the United States. The Lanham Act was passed in 1946, and established the trademark system in the United States, allowing companies to sue others for trademark infringement “if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.” Jack Daniel’s claims that the product, clearly identifiable as a riff on the brand and thus fulfilling the consumer confusion requirement, dilutes the brand by associating it with fecal matter, harming the brand’s image with their customers. VIP Products disagreed, claiming that neither prongs of the Lanham Act apply to the case.
While the exceptions the Lanham Act provides seem as if they would be simple to apply to this case, there is much debate between the two sides on this. As mentioned previously, Jack Daniel’s argues that the Bad Spaniels toy directly diminishes their brand by associating it with dog feces, and that since the toy is a product being sold it is a commercial use of their trademark. They argue against the idea that the Bad Spaniels toy warrants a fair use exception under the Lanham Act, as VIP Products has attempted to trademark products within the parodical “Silly Squeakers” line. Effectively, they claim that VIP Products cannot claim fair use, they are using trademarked aspects in order to create their own trademark, not to parodize the brand itself. They warn that a ruling in favor of VIP would effectively strip companies of control of their trademarks, thus preventing them from effectively communicating their brand.
VIP Products stakes their argument on the idea that the Bad Spaniels toy is parodical speech that is being sold, meaning that First Amendment parody protections ought to be triggered. They claim that it does not matter that the product is being sold (attempting to avoid Jack Daniel’s commercial trademark infringement argument), as First Amendment jurisprudence has long protected commercial speech. VIP Products state that their supposedly limited use of the Jack Daniel’s branding constitutes fair use, thus triggering the aforementioned exclusion. They raise concerns that if the Court rules that a parody product violates the Lanham Act under brand tarnishment, then the Court runs the risk of endangering First Amendment rights through viewpoint discrimination. After all, only parodical speech which uses trademarked elements and is critical of the brand would constitute infringement. Parodical speech that is supportive of a brand (as hard as that is to imagine) and also uses the same elements would not face the same punishments.
Given how widespread parody is nowadays, and how often it is brands that are the butt of the joke, this ruling has the potential to majorly impact online culture. In the Court’s recent oral arguments on the case, many of the Justices were sympathetic to Jack Daniel’s, focusing more-so on the brand tarnishment and commercial use aspects of the case. It is quite likely that we will see a decision from the Court disregarding the parodical aspects of this case and avoiding discussions about the First Amendment, and we may see limits placed on the ability to use trademarked aspects. In conjunction with Goldsmith v. Warhol, it appears that the justices are gearing up to restrict fair use, both in copyright and trademark law. Given the memetic nature of the internet and modern society, this has major implications for our speech, as what was once considered legal may no longer be. If this occurs, social media websites are likely to crack down even further on content that could include trademarked aspects, which would result in a chilling effect on the platforms themselves. If content creators who base their work around trademarked content (such as the social media-themed characters who were all the rage in 2019) are punished by websites for violating trademark law, that makes other creators less likely to post their work as they fear it will be restricted or deleted. Regardless, two things are clear: our right to freedom of speech and parody hinges on non-restrictive IP protections, and those freedoms are now at risk because of a dog toy.