By now you must have heard about the dustup involving Yiddish with Dick and Jane. The irony for me is that not long after I was learning to read English with the original Dick and Jane at P.S. 225, I was learning Yiddish from an essentially identical book for little secular Yiddishists (it turned out handy later at the Chaim Berlin yeshiva, but I digress) with “Motl” and “Gitl” standing in for Dick and Jane.
In any event, and after discussing this case with my friend, IP lawyer Ben Manevitz, this case seems to be pretty much out of the “fool’s parody” playbook — “fool’s” as in “fool’s gold.” It looks like a parody, but it isn’t.
The case to look at here is the “Cat Not in the Hat” case out of the (here it comes) Ninth Circuit (getting one right). Here the Circuit Court followed the rule set out a few years earlier in the “Pretty Woman Parody” case and applied it to a book, written in the style and format of Dr. Seuss’s The Cat in the Hat, to tell the story about the O.J. Simpson murders in which Simpson is “the cat not in the hat.” (Tastefulness was not a basis of the decision.) The court correctly distinguished between a real parody, whose target is the plaintiff’s work, and what I am calling a “fool’s parody,” which merely utilizes (or as Ben says nicely, “leverages”) the extant work as a way to parody some other thing.
Now it’s possible that the target of the parody here is the gentile world, of which Dick and Jane are supposedly emblematic. (Of course many argued they weren’t even emblematic of that.) The problem with such an argument is that it’s too broad of an exception. No, that Spot won’t hunt.
UPDATE: I stumbled on some terrific and contrary commentary on how to read the Cat Not in the Hat and Pretty Woman cases from, guess who, Marty Schwimmer, here wearing his Blawg Channels hat last year. Under his interpretation, the “broader commentary” would in fact fly, to which I say he has thereby crafted an exception that swallows the rule. As I said to some friends recently, I remain pretty right-wing on copyright — despite being bloodied (and significantly enlightened) online years ago by the crew at the old CYBERIA-L list. But on trademark I’m a freethinker…
21st CENTURY UPDATE: And based on this ancient analysis, I’d say DUMB STARBUCKS, while dumb, might be a protectible parody. I think. My problem is I can’t really figure out the joke. Can a parody be so ironic that’s it not even a parody? Brozik, meanwhile, is much more skeptical.