Whistle while you cringe

Dave Wieneke asks: Can the Seven Dwarfs of Menopause not be infringement?

Note that this (below) is the version up on Dave’s site.  There are others out there, relatively less safe for work.  But maybe not misspelling psycho.  Or dwarfs.  Not that I’m going to bring that up, exactly, you know.

Anyway, yeah, I think they can not be.  Um, or be not.

Is it a parody?  Probably not; the target of the fun is not the dwarfs.  But is a trademark use being made of them?  (If so, by whom?  Well, Dave does mention this Suzanne Somers angle… but those are not Disney’s protected dwarfs!)

Bottom line:  Is there a LIKELIHOOD OF CONFUSION?  McCarthy teaches:

Some parodies will constitute an infringement, some will not. But the cry of “parody!” does not magically fend off otherwise legitimate claims of trademark infringement or dilution. There are confusing parodies and non-confusing parodies. All they have in common is an attempt at humor through the use of someone else’s trademark. A non-infringing parody is merely amusing, not confusing.

I’m not confused, at least not by the dwarfs.  Who would be?  And, after all, Dave asks, “Is there any way Disney can’t be so uncomfortable about this?”  Well, as the Ninth Circuit (cited by the Professor) said in connection with the ill-advised Carol Burnett case:

[T]he more distasteful and bizarre the parody, the less likely the public is to mistakenly think that the trademark owner has sponsored or approved it.

It’s probably not a parody, but I don’t think anyone’s making any mistakes here.  Hi ho.

UPDATE: In the comments, Scott gently points out the copyright thing, which seems, he said, pretty cut and dried.  In fact there was nothing in Dave’s original post that said “trademark infringement,” though that’s what I was thinking.