Actually, all of us know “parody” as a humorous or satirical imitation of something or someone. It has acquired a degree of significance within the context of the World Wide Web, and has also led to technical implications of no mean dimension under the Internet.
Parodies are of course much older than the Internet, and cases involving critical publications also involve some of society’s best known icons, including the Girl Scouts, Starbucks, and in a case that reached the US Supreme Court in 1994, a song by the rap group 2 Live Crew that was similar to Roy Orbison’s romantic tune Oh, Pretty Woman. Here, the court ruled that the 2 Live Crew version, about a “hairy woman,” could be protected as a commercial parody within the “fair use provisions” of the Copyright Act of the US, which was cited as a juidicial precedent by Philippine jurisprudence.
A parody, according to the courts, is a literary or artistic work that imitates the characteristic style of an author or a work, for comic effect or ridicule. According to a 1999 case involving a Barney character look-alike, “a reference to a copyrighted work or trademark may be permissible if the use is purely for parodic purposes.”
Interestingly, determining whether something is a parody under the law is not always easy to do, because a legal parody involves the conveyance of two simultaneous but contradictory messages. The parody must conjure up or target the work it parodies, but it must also be apparent that it is not the original.
If a critical website or any other online or even offline publication is considered a parody, it is legally acceptable (assuming other portions of it do not violate the law), no matter how offensive or harmful its target may find it; but if the site is not a parody, it may run afoul of defamation, copyright, trademark, or other laws.
For example, in a case only someone with a warped sense of humor could appreciate, the animal rights world organization People for the Ethical Treatment of Animals (PETA) sued Michael T. Doughney, the registrant of the domain name peta.org, asserting claims for service marks infringement, unfair competition, trademark dilution, and cyber-squatting.
Though the case might at first appear to be similar to countless other domain name disputes, what made this one especially interesting and relevant to this discussion is the fact that Doughney created a website, peta.org, with the title “People Eating Tasty Animals,” an idea obviously in contradiction to PETA’s mission, which includes opposing the exploitation of animals for food and clothing.
Doughney’s site stated that it was a “resource for those who enjoy eating meat, wearing fur and leather, hunting, and the fruits of scientific research.” The site contained links to meat, fur, leather, hunting, animal research, and other organizations.
In response to PETA’s lawsuit, Doughney claimed that his website was parody, protected by the freedom of speech (First Amendment). The court, however, did not buy his theory, granting PETA’s motion for summary judgment in June 2000.
The court on appeal definitely agreed and affirmed the decision in August 2001. The appellate court said that, looking at Doughney’s name alone, there was no suggestion of a parody. The domain name peta.org simply copies PETA’s mark, conveying the message that it is related to PETA. The domain name does not convey the second, contradictory message needed to establish a parody — a message that domain name is not related to PETA but that it is a parody of PETA.
Doughney claimed that this second message could be found in the content of his website. Indeed, the website’s content makes it clear that it is not related to PETA. However, this second message is not conveyed simultaneously with the first message, as required, to be considered a parody.
The domain name conveyed the first message; the second message was conveyed only when the viewer read the content of the website. As the district court had earlier explained: “An Internet user would not realize that they were not on an official PETA website until after they had used PETA’s mark to access the web page “www.peta.org.” Thus the messages were not conveyed simultaneously and did not constitute a parody.
With the phenomenal growth of the Internet, the number of critical websites has risen just as phenomenally. And, not surprisingly, the number of lawsuits over these critical sites has risen, too.
Starbucks filed a copyright and trademark infringement suit against a San Francisco cartoonist who created a website with a logo that had the words “Consumer Whore” in lieu of Starbucks. I do feel bad about this because Starbucks’ Iced Decaf Mocha with whipped cream is my favorite coffee drink.
And in the case of Barney, that lovable singing purple dinosaur is a favorite of my grandson, one-and-a-half-year-old Paco and my granddaughter, two-year-old Alexa! Attorneys for the Barney Children’s Television show wrote a letter to the Electronic Frontier Foundation, which hosted on its website articles from a magazine called the Computer Underground Digest, including one in which a writer joked about hating and wanting to kill poor Barney.
Another one that is world-renowned happened in February 2002, when the Republican Party of Texas, USA, threatened to sue the operator of a website known as EnronOwnsTheGOP.com. The website that highlighted connections between the Republican Party and the bankrupt Texan company used a logo in the shape of an elephant with an outline of the state of Texas and the Enron logo in the center of it. A lawyer for the Republican Party of Texas said the logo was confusingly similar to the GOP’s logo and violated trademark law. Because of the scandalous circumstances attendant thereto, ultimately the GOP backed off.
During the 2000 presidential election, George W. Bush’s campaign filed a complaint with the Federal Election Commission against the operator of a website at gwbush.com, which included, among others, cartoons of Bush with cocaine on his face.
A company that is targeted by online critics — sometimes called “cybergripers” — may want to take legal steps to shut them up, but the guarantee of free speech and expression often provides significant protection for critical speech on the World Wide Web. This is important, to my mind, because a defamation claim generally requires an intentional false communication; pure opinions expressed on a critical site often are not legally actionable. And, in quite a number of cases, the courts have found these websites to be parodies protected by free speech and expression.
But, as with many aspects of Internet Law, because it is still in the process of evolving, no matter how speedy the pace could be, it is not yet easy to draw consistent and definitive legal guidance from jurisprudence on critical websites.
If the above cases seem confusing, to a certain extent, that’s because they are.
Legally protected parody under the Philippines’ Free Speech and Expression Guarantees of our constitution and under the US Constitution’s First Amendment was not the easiest legal concept to understand even before the arrival of domain names, trademarks, etc., so courts have struggled with how to apply this constitutional issue in cyberspace.
Despite this confusion, though, traditional laws and the jurisprudence on cyberspace, parody, and critical websites, have provided guidance in this area.
If you are a dissatisfied customer or have some other reason for becoming a cybergriper, the most important thing to remember is that there’s no doubt you can air your grievances online — the tricky question, though, is how you can do so without violating defamation, trademark, copyright, or other laws.
And if your company has been targeted by a cybergriper, the most important thing to remember is that although you may feel wronged and although you may actually suffer damage, you should consider whether the free speech and expression guarantees under the constitution will prevent you from prevailing in a lawsuit designed to shut up your critics.
Finally, as in any lawsuit, a plaintiff should consider seriously the public relations ramifications of trying to silence cybergripers. Sometimes, the attention created by filing a lawsuit will be greater and more damaging than that created by a cybergriper.
And please remember that parodies are, most of the time, given my abovementioned remarks on them, legal. I guess Alexa and Paco, my little grandchildren, will have their favorite cartoon character, the lovable Barney, with them for a good, long time.
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