On Mon, 08 Feb 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On Fri, Feb 05, 1999, Michael Moore <moore[_at_]u.arizona.edu> wrote:
> >
> > I've been following the interesting thread about selling t-shirts that
> > may infringe on a copyright and trademark, and I'm wondering how parody
> > skews the equation. In particular, see this image that uses Lucasfilm
> > properties to parody third parties (Clinton, Starr, etc.):
> >
> > http://www.coh.arizona.edu/english/moore/starrwars.html
> >
> > Legal?
>
> There is no definitive answer to that question, and its legality may
> [for the time being] depend on where you live.
>
> In Campbell v. Acuff-Rose, the Supreme Court held that a 2 LIve Crew
> rap music parody of "Oh, Pretty Woman" (and parody generally) fell
> within the fair use doctrine. However, the opinion expressly addressed
> only the right to parody the copyrighted work itself, and it reserved
> the question of whether using a copyrighted work only to parody
> something else (a use the court termed "satire") was a fair use.
> Justice Kennedy, concurring, expressed the view that such use should
> be infringing.
>
> In Dr. Seuss Enterprises v. Penguin Books, involving a satire of the
> O.J. Simpson case written in the style of Dr. Seuss, the Ninth Circuit
> adopted Justice Kennedy's viewpoint, and held that "pure" satire (a work
> that did not "target" the copyrighted work itself, but only some other
> target) was an infringement. Some cases in other circuits have given
> parody and satire a little more leeway, but the case law is quite
> inconsistent.
>
> In my opinion, the Dr. Suess case was wrongly decided, and it conflicts
> with both Campbell and the First Amendment; but unless and until it is
> overturned, I think it is reasonably clear that under Ninth Circuit law,
> the web site to which you refer would be considered infringing. But
> different judges see things different ways, and it is certainly possible
> that a different Circuit (or a different panel of the Ninth Circuit)
> would hold that it was a fair use, thereby setting up an inter-Circuit
> or intra-Circuit conflict that would have to be resolved. I certainly
> hope so, because in my opinion the Dr. Suess decision is breathtaking
> in its disregard for free speech, and needs to be overturned as soon
> as possible.
>
> [One of the problems that I have with Justice Kennedy's approach is that
> assumes a court is capable of determining what the "target" of a parody
> or satire is. But if someone uses a parody of "Star Wars" to comment on
> Ken Starr and Bill Clinton, that is implicitly also a comment on "Star
> Wars." In other words, drawing an analogy or connections between a work
> and some aspect of society necessarily runs both ways.]
>
> For a more detailed criticism of the Dr. Seuss case, see my article,
> "Dr. Seuss, The Juice and Fair Use: How the Grinch Silenced a Parody,"
> 45 J. Copyright Soc'y of USA 546 (1998). If you would like a reprint
> of the article, send me your name and mailing address in a private
> e-mail. [For those of you who requested reprints last fall, I finally
> received them just last week, and they are being mailed out today.
> Thank you for your patience.]
This entire thread seems to me to be an academic exercise that is completely missing the point of the original post. All of the parody/satire/infringement cases being discussed by everyone involve the sale of a NEW product, not the resale of a used product. When you buy a t-shirt in the United States, you can do pretty much anything you want with it. You can alter it, sell it destroy it, or wear it in public. You don't need permission to write on your own clothes.
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