On Post-Parody, Nominal Trademark Infringement, and Copyright Supremacy

2 Pages Posted: 14 Apr 2014 Last revised: 2 Dec 2014

Date Written: November 1, 2014

Abstract

In this companion piece to “Trademark Law and the Prickly Ambivalence of Post-Parodies,” 163 U. Pa. L. Rev. Online 11 (2014), I explain why claims brought by brand owners against post-parodists incorporating third-party graphic trademarks — in what I call “nominal trademark infringement” cases — are foreclosed, as a structural matter, by the interface between federal trademark and copyright law.

I argue that under the constitutionally grounded principle of “copyright supremacy,” claims for nominal trademark infringement are (trademark owners’ perfunctory recitations of “likelihood of confusion” notwithstanding) substantively indistinguishable from copyright-infringement claims based on alleged violations of authors’ exclusive rights to the “reproduction,” “distribution,” and/or “public display” of their works, and thus “laterally preempted.”

Even to the extent such nominal trademark infringement claims are not completely foreclosed, I explain, they are nevertheless subject to the more robust — and, in the post-parody context, practically dispositive — limitations on copyright’s reach, including copyright law’s threshold requirement of “originality,” its “idea/expression” distinction, and its “fair use” defense (far broader than the similarly named defenses traditionally associated with trademark jurisprudence.)

This article concludes with observations about the incidental, but salutary, effects of this mandatory application of “copyright supremacy,” including the avoidance of such perilous judicial endeavors as distinguishing (1) “commercial” from “non-commercial” speech, (2) “artistic” from “non-artistic” uses of marks, and (3) “incorrect” from “correct” interpretations of non-literal imagery (which, by its very nature, has no singular or fixed meaning — as cognitive scientists, art theorists, and others have long recognized.)

Keywords: copyright, supremacy, Dastar, fair use, trademark, Lanham Act, brands, intellectual property, First Amendment, parody, postmodern, collage, pastiche, fashion, DIY, user-generated, UGC

Suggested Citation

Colman, Charles, On Post-Parody, Nominal Trademark Infringement, and Copyright Supremacy (November 1, 2014). University of Pennsylvania Law Review Online, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2423457

Charles Colman (Contact Author)

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