Celebrities and popular artists, like other public figures, face a tough road if they want to sue someone for making fun of them. Many know that fair use places a high legal burden on authors and artists who bring copyright claims against those who parody them or their work. Lesser known -- but equally important -- is that parodies receive strong protection against trademark claims as well.
The New York Times has an excellent recent example of a weak trademark claim that probably will result in nothing other than wider dissemination of the parody. Last week Danyelle Freeman, an author and restaurant critic for the New York Daily News who runs the Restaurant Girl Blog, had her lawyers send a cease-and-desist letter to the operator of an unflattering parody blog and Twitter feed.
Adam Robb Rucinsky writes the Gourmet Glossary Blog and Restaurantgirl Twitter feed in the guise of a faux-Freeman, lampooning both her conversational writing style and her (alleged) lack of expertise. In Rucinsky's words, the character is “a sweet but inept restaurant critic who loves food but has no idea how to express it.”
Unfortunately for Freeman, it doesn't look like she has much of a case. Parodies typically will not violate an author or artist's trademark rights so long as people won't confuse the parody for the original author's work. In order for Freeman to argue that Rucinsky's work isn't a protected parody, then, she would need to argue that it is so similar to hers that others could believe that it was hers.
I say Freeman doesn't have much of a brand to protect if anyone would be confused into believing she makes statements such as, "Does anyone know what happens to all the chocolate bunnies no one bought for Easter? Are they put to sleep?"
Luckily for us, Rucinsky hasn't been deterred by Freeman's legal advances. His sole concession thus far is a disclaimer on the Gourmet Glossary blog, which admittedly detracts somewhat from the parody's effect. Otherwise the adversity has compelled Rucinsky, like many fine artists, to produce his best work. For instance, a recent RestaurantGirl Twitter post reads:
"If I've been told to 'season desist' does that mean I have too much flava?"
Carry on, Mr. Rucinsky.
(Matt C. Sanchez is a third-year law student at Harvard Law School and the CMLP's Legal Threats Editor. Matt has a new blog at Florida Media Lawyer.)