Lighten Up: Copyright Act

In advertising, frivolity has become a serious – and successful – business. That often means that successful ads are parodied. It can also mean a lawsuit.

There is a fine line between parody and piracy. When one ad parodies another, courts must decide whether the parody is really piracy or protected by the Copyright Act’s safe harbor of “fair use.”

Fair Use Considerations

Copyright owners have the exclusive right to control the reproduction, distribution, performance, display, and creation of derivations of its works. But the Copyright Act does allow others to make “fair use” of them:

The fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching…scholarship or research is not an infringement of copyright. In determining, whether use made of a work in any particular case is a fair use, the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Although parody isn’t specifically mentioned in the Act, courts have recognized that is can qualify as fair use…although until recently no parody cases had involved advertising.

But a decision by a federal court in Illinois last May has pushed parody to unprecedented parameters.

The Not-So-Funny Bunny

Last April, the Coors Brewing Co. produced a Coors Light TV spot featuring Leslie Nielsen. The spot was created to parody Eveready Battery Co.’s famous Energizer Bunny campaign.

The Coors commercial begins with a background voice, speaking over a classical music score, heartily describing the attributes of an unidentified beer. As the voice speaks, the visual shows an extreme close-up of beer pouring into a glass. The voice and music then grind to a halt as a drumbeat is heard and Mr. Nielsen appears walking across the visual wearing a conservative business suit, white rabbit ears, fuzzy tail, and pink rabbit feet. He carries a life-sized bass drum imprinted with the Coors Light logo. After beating the drum, Mr. Nielsen spins rapidly seven or so times and, after recovering somewhat from his apparent dizziness, resumes walking.

Unamused, Eveready sued for copyright and trademark infringements and trademark dilution. The court dismissed the trademark challenges before discussing whether the parody was a fair use of Energizer’s copyrighted spot.

Parody’s Past

Under the Copyright Act’s four fair use criteria, the threshold question is whether the supposedly infringing work is even eligible for fair use protection.

A long line of cases have held that to qualify as a fair use, a parody must be in the nature of criticism or comment – certainly not an ad. In 1985, the U.S. Supreme Court said “every commercial use of copyrighted material is presumptively an unfair exploitation.”

That and most other cases simply held that if the parody was for commercial purposes, there was simply no need to consider the other three fair use factors.

While some courts at least pretended to consider the other factors when the copying was for commercial purposes, they nonetheless always reached the same result.

For example, when Sambo’s Restaurants created its “Dancing Seniors” campaign to parody Dr. Pepper’s “Be a Pepper” commercial, a Texas federal court considered all four factors, but still found infringement.

Last year, a New York court held that a Miller Beer spot featuring actors who resembled the Fat Boys rap group could not constitute a parody since its use was “solely for personal profit.” The court pointedly remarked that since Miller’s use of the “parody” was in a commercial, it was “unrelieved by any creative purpose” since a commercial cannot function as a valid vehicle for the expression of the “creative flow of ideas” which, it said, is “the justification for the parody branch of the fair use doctrine.”

But the Coors court rejected that rationale and ruled against Eveready;

“It is not apparent what the (Miller Beer) court meant by ‘solely for personal profit’. …Although the primary purpose of television commercials may be to increase sales and income, it is not readily apparent that they are therefore devoid of any artistic merit or entertainment value…In this regard, it is difficult to conclude that the Coors commercial is ‘unrelieved by any creative purpose.’ ”

Although the court agreed that the first fair use factor (commercial vs. non-commercial use) weighed in Eveready’s favor, it stood precedent on its head and considered the other three.

In both the Dr. Pepper and Coors cases, the courts considered the second factor (the nature of the copied work) to be a neutral one because both the originals and parodies were “only” ads.

The court said the third fair use criteria (the “amount and substantiality” used) did not weigh in Eveready’s favor. Eveready had contended that Coors took more than the minimum necessary to “conjure up” the image of its Energizer Rabbit. The court said that while copyright law imposes limitations on the extent to which a legitimate parody may borrow from an original, “the ‘conjure up’ test does not articulate this upper limit.”

With regard to the fourth factor (the effect Coors’ use had on the market for or value of Energizer’s TV spot), the court found there was no evidence to indicate that the Coors commercial would supplant the market for Eveready commercials. By contrast, the Dr. Pepper court had held that “distractions from the uniqueness and originality of the ‘Be a Pepper’ commercials would logically shorten the life of the campaign.

The Future of Fair Use 

Will the Coors decision open a panpoly of parodies? It already has. Does it mean that all parodies can slip into the safe harbor of fair use? Not necessarily.

The decision has seemingly made the harbor deeper. But advertisers who head for the harbor should remember that the Coors Judge is but one of many harbormasters. And many still believe commercial copying is the last refuge of scoundrels.

 

Penny Ohlmann Neimann

The Ohlmann Group has a rich history that began in Dayton, Ohio in 1949, where the agency was founded as Penny and Penny by Bob Penny and his wife Jean. In 1964, Walter Ohlmann joined the firm. Ralph Neiman came on in 1969 and the firm became Penny/Ohlmann/Neiman. In 2011, P/O/N was renamed The Ohlmann Group to better reflect the agency's ongoing evolution and collaborative nature.

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