Content-Type: text/html
Running head: Legal Consideration of Parody Sites
Legal Considerations
When Consumer Opinion Websites Parody Companies or Brands
Tae-Il Yoon,
Doctoral Student
School of Journalism
University of Missouri-Columbia, USA
Student submission to be considered for the Top Student Research Paper
and Whitney and Shirely Mundt Award
All correspondence to:
Tae-Il Yoon
School of Journalism
University of Missouri-Columbia
Columbia, MO 65211
Phone: 573-771-0109
Email: [log in to unmask]
Paper submitted to the Law Division of
the AEJMC 2002 Annual Conference, Miami, FL.
Legal Considerations
When Consumer Opinion Websites Parody Companies or Brands
Abstract
As the Internet has become a "modern symbol of the classical market of ideas,"[1] consumer opinion sites that parody companies or brands become popular in the cyberspace. This article examines various legal issues and law cases that might be applicable to parody sites in the light of copyright laws, trademark laws, libel laws, and service provider liability. Looking at a possibility that parody sites can lie in the tension between free speech rights, intellectual property interests, and libel issues, this article discusses how parody sites can enjoy First Amendment freedoms by avoiding legal pitfalls.
Legal Considerations
When Consumer Opinion Websites Parody Companies or Brands
"The explosion of the Internet is not without its growing pains. It is an efficient means for business to disseminate information, but it also affords critics of those businesses an equally efficient means of disseminating critical commentary." [2]
Introduction
The term parody originated from the Greek word parodeia, which means "a song sung alongside another." Parody, as a form of artistic expression, is "a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule."[3] It is a very effective literary form that can be used to criticize, satirize, and ridicule a target. Parody sites become popular in the cyberspace. The World Wide Web and other digital manipulation technology provide Internet users with opportunities to create parody sites for use as a critical forum. By way of ridicule imitation, parody sites can be embodied as political sites[4] or consumer opinion sites.[5]
As with political parody sites that try to expose politicians' questionable practices, consumer opinion sites have become both easy and popular ways for unsatisfied consumers to criticize, complain, and parody companies.[6] In the days before the Internet, consumers unsatisfied with a company had little recourse for their complaint; nowadays, the Internet has empowered consumers. As commercial transactions in cyberspace increase, the ability for consumers to publish their complaints increases. The Internet has become a "modern symbol of the classical market of ideas."[7]
As the U.S. Supreme Court in Hustler Magazine v. Falwell[8] declared, parody is protected speech under the First Amendment; however, the precise boundaries of legitimate parody sites are sometimes difficult to define.[9] The ways in which parody sites can be protected under the First Amendment differ according to the type of speech involved.[10] Under the First Amendment, commercial speech is usually less protected than is noncommercial speech. Unfortunately, the distinction between commercial and non-commercial speech is unclear, particularly in the Internet environment. Even though a parody site can be treated as noncommercial speech, it may be involved with intellectual property infringements or defamations. The assertion of "parody" in consumer opinion sites is not a simple answer to this problem. Thus, parody sites may lie in the tension between free speech rights, intellectual property interests, and libel issues. [11]
This article investigates the kinds of legal aspects consumers should consider when using parodies in consumer opinions sites in order to enjoy First Amendment freedoms. For this purpose, the paper examines various legal issues and law cases dealing with parody sites in the light of copyright laws, trademark laws, libel laws, and service provider liability. In conclusion, this paper will discuss how parody sites can enjoy free speech rights by avoiding legal pitfalls.
Copyright Issues
Copyright laws usually give a copyright owner the exclusive right to control duplication of writings or other intellectual property. In the United States, the first federal copyright law was adopted in 1790, while current copyright protection was granted by the 1976 Copyright Act.[12] Although Congress and the courts have been forced to make changes in the copyright law in response to the development of new media technology since then, there is no indication that either Congress or the courts are about to make any major revisions. Copyright laws in cyberspace can be doubly vague, because although they are certain in some area, they are unclear in others.
"Fair Use" Doctrine
In order to claim that their copyrights have been infringed, authors should prove: 1) that they originally created their own work, 2) that they own valid copyrights, 3) that others had access to their copyrighted work, and 4) that other's work is substantially similar to the original. Among these stipulations, determining substantial similarity between two works is usually described as one of the most difficult questions in copyright law.[13] However, parody is usually similar to the original work, mainly because parody is "ridicule imitation"[14] of an original work. Therefore, it can be easily proved that parodists had access to the original work and that the parody is substantially similar to the original work. And yet, although there may be a substantial similarity between a parody and an original work, parody can be permitted under an exception referred to as "fair use." The federal copyright law states that the unauthorized use of a copyrighted work for the purpose of cr
iticism, comment, news reporting, teaching, research, or parody is not an infringement of the copyright if the use qualifies as a "fair use." [15] According to section 107 of the Copyright Revision Act, there are four factors to be considered when a court is determining if copying constitutes a fair use:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose.
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.
4. the effect of the use upon the potential market for and value of the copyrighted work.
Campbell v. Acuff-Rose Music, Inc. [16]
The case of Campbell v. Acuff-Rose Music, Inc., illustrates how these four factors are carefully considered when a parody is granted as a fair use. The U.S. Supreme Court ruled in this case that a parody could be considered a "fair use" even though it had a commercial purpose and copied the heart of the original work. In Campbell v. Acuff-Rose Music, Inc., a popular rap group called 2 Live Crew wrote and recorded a 1989 song titled "Pretty Woman," which parodied Roy Orbison's 1964 song "Oh, Pretty Woman." Looking at the first factor, which examines the purpose and character of use, the Supreme Court ruled that a commercial use did not necessarily prevent a fair use. This decision rejected the case of the lower court and other preceding cases, in which any commercial use was treated as presumptively unfair and therefore on infringement (e.g., Tin Pan Apple, Inc. v. Miller Brewing Co., Inc.[17]). According to the Court, if commercial use was presumed to be unfair, most duplication
of copyrighted works for news reporting, comment, criticism, research, and parody would be unfair because these activities are usually conducted for profit. The Court declared that the context of the use was more important. The second factor, the nature of the copyrighted work, was not applicable to parody, because "parodies almost invariably copy publicly known, expressive works." [18]
In considering the third factor, the Court ruled that although the opening of 2 Live Crew's parody song was similar to the original song, the parody song created its own comments on, and criticism of, the original song. The Campbell case is in direct contrast to the case of the Dr. Pepper Company v. Sambo's Restaurant, Inc., in which the Sambo's parody commercial "Dancing Seniors" was substantially similar to Dr. Pepper's original "Be a Pepper" campaign, despite the differences in the words of jingle word usage and the age of the target audiences.[19]
In judging the fourth factor-that is, the effect of the use on the potential market-- the Court distinguished tolerable versus intolerable harms. The effect of a parody on the market for the original work was a tolerable harm; therefore, a parody could be protected like a book or theater review that criticized the original work, and thereby decreased the demand for the original work. However, the courts have not always recognized this distinction. [20] In the Dr. Pepper case, the court found that the Sambo's ad could have a the potential effect on Dr. Pepper's market because Sambo's parody ad was very similar to the original Dr. Pepper's ad and thereby could possibly shorten its life.
Copyright Infringement in Cyberspace
It seems as though the basic rules of copyright law are essentially the same in the online world as they are in the offline world.[21] When individuals download an article from a newspaper web site and forward it to a news group, or when individuals save an email in an archive and make copies, they may be infringing online copyright laws. Thus, Internet users who traded music recordings through the Napster online system violated the copyright law, and Napster also contributed to such infringement by Internet users.[22] A federal appeals court in A&M Records v. Napster ruled that without Napster's support services, users could not find and download music they wanted as easily. In addition, Napster was treated as "a vicarious infringer" because the company had a direct financial interest in building the userbase on which future profits depended.[23] The liability issue for service providers will be discussed later.
There is, however, a different perspective for copyright infringement in cyberspace. According to the "personal use in cyberspace" claim proposed by Deborah Tussey, a legal scholar,[24] downloading or sharing files in cyberspace may not infringe copyright. Personal use in cyberspace is "consumption or adaptation of intellectual properties by individual users for their own purposes," without payment to, or permission from, the property rights holder. Personal use includes browsing, downloading, copying and digital modification of works for one's own use, and disseminating copied works. Fan sites, parody sites, and filesharing can also be included in this category. Based on the "personal use in cyberspace" assertion, it can be inferred that consumer opinion sites using parodies should be protected without infringing upon a target company's copyright, even if they cannot meet the "fair use" criteria.
Trademark Issues
Another type of intellectual property law that may be involved with parody sites is the trademark law. According to the amended Lanham Trademark Act of 1946,[25] a trademark is defined as "any word, name, symbol, or device, or any combination therefore _ adopted and used by a person _ to identify and distinguish his or her goods _ from those manufactured or sold by others and to indicate the source of the goods." Similarly, a service mark is a symbol used in sales or advertising to identify services instead of products. Brand names, logos, symbol marks, domain names, sounds, broadcaster's call signs and other words or symbols associated with goods or services that cannot be protected under copyright law are protected under trademark law. Trademarks have dual purposes for companies and consumers.[26] Thanks to trademarks, companies can establish a reputational relationship with their with customers; while the same time, signaling to consumers the uniform quality of goods and service. In this way, trademarks reduce the time and effort consumers expend in buying products.
"Likelihood of Confusion"
When a trademark in a parody website is identical or substantially similar to a company's already existing trademark, thereby deceiving or confusing the public, trademark infringement may occur. Under the Lanham Act, the key factor in determining trademark infringement is whether the parodist's unauthorized use of the mark is likely to cause confusion in the eyes of consumers; survey evidence for "likelihood of confusion," among consumers has been increasingly used.[27] The courts have developed a list of factors to aid in the analysis of "likelihood of confusion." The following eight factors were examined in Bally Total Fitness v. Faber[28]: 1) the strength of the mark; 2) proximity of the goods; 3) similarity of the marks; 4) evidence of actual confusion; 5) marketing channels used; 6) types of goods and the degree of care likely to be exercised by the purchaser; 7) defendant's intent in selecting the mark; and 8) likelihood of expansion of the product lines.
Even though the use of a trademark may not deceive or confuse the public, trademark dilution may occur when the distinctive quality of a trademark is tarnished or blurred by its use for other products. Trademark dilution is prohibited under the Federal Trademark Dilution Act of 1995, which protects "famous" trademarks from unauthorized use where it causes blurring or tarnishing of the mark's distinctive quality. [29]
As can be seen in Panavision v. Toeppen,[30] accessibility and the pervasiveness of the Internet have increased a new form of trademark infringement and dilution claims, known as "cybergriping" or "cybersquatting."[31] Until recently, domain names were governed by Network Solutions, Inc. (NSI) under the rule of "first come, first served." The new NSI policy, however, declares that all domain name applicants are required to promise no possible domain name infringement, stating that NSI will force them to relinquish their domain name if anyone shows them a trade mark registration for that name issued by any national government.[32] Consumer opinion sites do not attempt to profit by reserving others' domain names, so consumer opinion sites using parodies are usually cybergriping. Nonetheless, parody websites may easily be involved with domain name infringement and dilution because their website names or addresses frequently consist of the target company's trade name in addition
to the words "sucks" or "anti," and usually display digitally manipulated images of the corporate symbols, logos, or colors. The following cases demonstrate how parody websites can be involved with domain name infringement claims.
Bally Total Fitness v. Faber[33]
This case illustrated that consumers' opinion websites parodying a target company's trademark and corporate name did not constitute trademark infringement or dilutions. Andrew S. Faber ("Faber"), a web designer who was dissatisfied with the services of the Bally Total Fitness Holding Corp ("Bally"), created a "Bally sucks" site that is dedicated to complaint about Bally's health club business. The site stated "Bally Total Fitness Complaint! Un-Authorized" with Bally's mark and the word "suck" printed across it. The "Bally sucks" site was one of many that could be accessed via Faber's registered domain name, within which there were other web sites, such as male pornography sites, gay community sites, and a website advertising Faber's web design service.
To find out whether or not Faber had infringed upon Bally's mark, the court applied the eight-factor test in order to determine likelihood of confusion. The court ruled that all factors except the first (i.e., Bally has strong marks) could not be applicable to Bally. According to the court's analysis, the "Bally sucks" logo was not substantially similar to the original logo, claiming that "it is impossible to see Bally's parodied mark without seeing the word suck." Although both used websites, the Bally sucks site did not compete with the original site because their purposes and marketing channels were fundamentally different. There was no possibility that the Bally sucks site might expand its product lines into Bally's fitness market. Due to the lack of the "likelihood of confusion," the court concluded that Faber's parody sites could be protected without trademark infringement.
PETA, Inc. v. Doughney[34]
The decision reached in the Bally Total Fitness v. Faber was evaluated by legal scholars as "an appropriate balance between the rights of a trademark owner and the rights of an individual."[35] In contrast, the court in PETA, Inc. v. Doughney indicated that use of the mark as part of the domain name to deceive Internet users was not entitled to First Amendment protection. People for the Ethical Treatment of Animals, commonly known as PETA, is a non-profit, charitable organization. In 1995, when PETA had no websites of its own, Doughney registered a website "www.PETA.org" for "People Eating Tasty Animals" that opposed PETA's viewpoint. PETA claimed that PETA.org infringed upon the longstanding registered service mark of People for the Ethical Treatment of Animals.
Looking at "likelihood of confusion" among Internet users, the court determined that Doughney's use of PETA's mark did cause confusion because he the mark was identical. In examining Doughney's parody defense, the court said " a parody exists when two antithetical ideas appear at the same time." In this case, the two images-the famous PETA name and Doughney's site, PETA.org, was not a parody because Internet users could not have simultaneous access to both sites. This case demonstrated how "likelihood of confusion" in parody sites could grant service mark infringement claims.
Libel Issues
"Actual Malice"
Parodies in consumer opinion sites can become libelous if they make companies to be redi ridicule by suggesting that the companies do not deserve transactions. However, it is a very hard task to distinguish defamatory and nondefamatory parodies. If what consumers say in web sites is false and undermines confidence in the business or professional's job, they are liable. In other words, when a company that is parodied in a consumer opinion site proves that the consumer web site has falsely blamed its business conduct, characteristics, or services, the parody sites can be liable for "trade libel." Trade libel, or product disparagement, defames the quality or usefulness of a commercial product rather than the company that produces it. Although companies can sue for damage to their corporate and product reputation, they cannot do so for damage to any individual's reputation.[36]
In proving a loss of business, a company that is attacked in consumer opinion sites must establish that the web site published defamation, either with common law malice, defined as intention to harm, or actual malice, defined as knowledge of falsity or reckless disregard for the truth. Therefore, the question of libel in parody sites is whether consumers know that what they said was false, or whether they were merely reckless about substantiating it. Ever since New York Times Co. v. Sullivan[37], a milestone case in libel history, it has been a basic concern that plaintiffs must prove actual malice to prevail in a libel suit. There has , however, been dispute about what types of behavior constitute actual malice. Libel scholars have categorized evidentiary behaviors as follows: 1) ill will, 2) failure to investigate or verify, 3) reliance on an inherently ambiguous source, 4) investigation as affirmative evidence for the defendant, 5) negative tone, style, editorial slant, and
language, 6) lack of balance and selectivity, 7) unprofessional editorial process, 8) no consultation with counsel, and 9) failure to retract.[38] The following cases illustrate how actual malice tests are used in libel cases by the courts.
Hustler Magazine, Inc. v. Jerry Falwell[39]
The Supreme Court in this case held that parody is a constitutionally protected message in the absence of false statements of fact which were made with actual malice. In this case, Hustler Magazine parodied a series of advertisements in which celebrities speak about their "first time." One of these ads parodied Jerry Falwell, a nationally known minister and commentator on politics and public affairs. The minister claimed that Hustler magazine's "outrageous" parody entitled him to damages for libel. The Supreme Court ruled this case in the context of the rule of New York Times Co. v. Sullivan, which held that, under the First Amendment, the defendant may be held liable for defamation of public figures only if the defamatory falsehood was published with "actual malice."[40] In the same vein, the court in the Hustler Magazine case held that the parody did not contain a false statement of fact which was made with actual malice, i.e., with knowledge that the statement was false or re
cklessly disregarded the truth. The rationale was that the minister is "a public figure"[41] for the purposes of First Amendment law, and that the parody could not reasonably be understood as describing actual facts about the minister or actual events in which he participated. It can be inferred from this case that parodies in consumer opinion sites should not be liable for libel unless the parodies contain a false statement of fact which was made with actual malice, unless the parodists knew that what they said was false, or that they had been reckless about whether the statement was true or not.
Dustin Hoffman v. Capital Cities/ABC, Inc.[42]
Although neither parody nor consumer opinion sites are directly related with Dustin Hoffman v. Capital Cities/ABC, Inc., the implications of this case may be significant in the case of parody sites that typically use digital manipulation. In reversing the district court's judgment in Hoffman's favor, the U.S. Court of Appeals for the 9th Circuit ruled that the manipulated image of Hoffman was insufficient to finding actual malice. In 1997, Los Angeles Magazine ("LAM") published an article entitled "Grand Illusions", in which digital technology was used to alter a photo of Dustin Hoffman in his 1982 movie "Tootsie," in which he played a male actor who dressed as a woman to get a part on a television soap opera. LAM manipulated the original photo to make it look like Hoffman was wearing a contemporary silk gown and high-heel shoes designed by Richard Tyler and Ralph Lauren. The court concluded that LAM's publication of the altered "Tootsie" photo was noncommercial speech and could
be awarded full First Amendment protection. To show actual malice, Hoffman would have had to with demonstrate with clear and convincing evidence that LAM intended to create a false impression in the minds of its readers that Hoffman had actually posed for the altered photo. The court concluded that there was no clear and convincing evidence of actual malice. Although this case did not involve parody sites, the decision may have significant implications regarding whether digital manipulation -which is widely used in parody sites can constitute actual malice.
Liability for Service Providers
One troubling feature of cyberspace is problems of identity; in cyberspace it is easier to fake someone's identity. When companies find trade libels and infringements on their copyrights and trademarks in anti-company parody sites, it is often difficult to identify who the real web operators are. In addition to this problem of identity, it is unlikely that companies will resort to suing consumers who complain about companies in their parody sites. If it becomes known that a company is suing a disgruntled customer, it may be more threatening to the company than any anti-company parody site per se.[43] As a result, the company that is attacked in an anti-company parody site is more likely to sue the online service providers rather than consumers.
Liability for Property Infringement
A lot of Internet service providers have argued they should be exempt from liability when service subscribers violate intellectual property law by illegal downloading or sharing. On the other hand, copyright or trademark owners argue that service provides have sufficient technical ability and business relationships to assume responsibility for intellectual property infringements by subscribers. In 1998, Congress adopted legislation that service providers are not liable when they merely transmit or temporarily store digital information for their subscribers.[44] Under a "strict liability" theory, a service provider is liable only if it knows, or has reason to know, of the infringement.[45] If a company complains about an infringing parody site, the service provider must take reasonable steps to determine whether the parody site is actually an infringement, and if so, immediately stop the infringements. If the service provider fails to stop or neglect infringement after it is notified of the infringement by a company, the service
provider may be held liable for infringement. Before complaint, however, the service provider is not responsible for noticing potential infringements. For example, the court in Religious Technology Center v. Netcom held that Netcom, the Internet service provider, was not liable for direct infringement because the role of Netcom was merely a conduit for making copies at the user's instruction.[46]
Liability for Libel
Similar ideas may be behind many of the disputes for online libel issues. If a libelous message is first posted, the service provider cannot avoid the first libelous posting. If service providers fail to stop, or neglect the defamation after they were notified about the defamation, they may be liable for the defamation. Two cases illustrate this difference. In Cubby v. CompuServe[47], the service provider - i.e., CompuServe-was not held liable for defamatory articles posted on its server by users because it was not aware of them. The service provider in this case was treated as a bookstore, rather than as a publisher. Actually, CompuServe had no editorial control over the messages posted by service users. On the other hand, Prodigy, the service provider in Stratton v. Prodigy,[48] was treated as a newspaper because Prodigy put itself in the position of taking responsibility for editorial control over the contents of the messages posted. Many scholars have criticized this decision
, and its authority has been made questionable by the recent Communications Decency Act of 1996.[49] The implications for parody websites are that service providers may not be liable for libel in anti-company parody sites unless they stop or neglect the defamation after they were notified about the defamation in parody websites.
Conclusion
This paper examined legal issues and cases regarding parodies in consumer opinion sites. Looking at copyright issues in parody sites, consumers can claim a "fair use" exception with copyright infringement. The legal cases reviewed showed how four factors should be examined in claiming " the fair use" exception. Regarding trademark infringement or dilution claims, consumers need to consider "likelihood of confusion." Eight-factor tests were illustrated to determine consumer confusion. In the case of libel issue, the critical issue was "actual malice." Some of the behaviors constituting "actual malice" were provided with legal cases. Parody sites can be involved with the issue of Internet service provider liability. Provider liability can be related with both property infringements and libel claims.
As reviewed above, the First Amendment freedoms enjoying by parody sites can conflict with property rights and libel issues. Although journalism and communications scholars tend to put a greater emphasis on First Amendment speech freedoms rather than on property claims, journalism scholar Bunker admitted, "property rights are almost certainly more fundamental to our legal system than are conceptions of freedom of thought and expression."[50] First Amendment free speech rights have been colliding with a variety of intellectual property and libel claims. According to a journalism scholar's assertion, property rights have been increasingly cannibalizing speech values at the margin, the main reason being that courts fail to think critically about the sensitive cases involved in the tensions between speech and property rights.[51] Keren Levy, a legal scholar, also supports this assertion.[52] He criticized the courts' inconsistent and confusing approach to trademark parody cases.
This issue becomes more salient and complicated when consumer opinion sites parody companies because the websites blur the line between commerce and expression of opinion. As a result, parody sites may become new battlefields for the age-old conflicts between speech freedoms, libel claims, and property interests.[53] Typically, consumer parodists who criticize companies tend to be less knowledgeable than companies. They may receive cease-and-desist letters from companies alleging infringements of their copyright and trademark, and/or libel issues. Due to a lack of legal knowledge, many disgruntled consumers just shut down their parody websites upon receiving such letters without challenging infringement suits.[54] To enjoy First Amendment freedoms and to avoid unnecessary conflicts, consumers need to consider all possible legal issues when using parodies in consumer opinion sites. The following suggestions are some examples of guidelines for creating parodies in web sites: 1)
The parody used in a promotional campaign must focus its comment or ridicule on the copyrighted work or trademark; 2) The parody must contain a substantial amount of originality; 3) The parody must limit its use of the copyrighted work; 4) copyrighted works and marks must be selected which have a strong identity in the marketplace; and 5) The parody cannot replace the demand for the copyrighted work or trademark product by merely shifting the demand from the original to the parody.[55]
[1] Leslie C. Rochat, "Comment: 'I See What you're Saying': Trademarked Terms and Symbols as Protected Consumer Commentary in Consumer Opinion Websites," 24 Seattle Uni. L. R. 599 (2000).
[2] Bally Total Fitness v. Faber 29 F. Supp. 2d 1161 (C.D. Cal. 1998) III
[3] Merriam-Webster 's College Dictionary. Online at http://www.m-w.com/dictionary
[4] See John H. Oram, "Will the Real Candidate Please Stand Up?: Political Parody on the Internet," 5 Intell. Prop. L. 467 (1998).
[5] Yahoo! has given them this name. Companies have increasingly referred to these sites by the less flattering term "rouge sites." See Leslie C. Rochat, "Comment: 'I See What you're Saying': Trademarked Terms and Symbols as Protected Consumer Commentary in Consumer Opinion Websites," 24 Seattle Uni. L. R. 599 (2000).
[6] See Barbara Warnick, "Appearance or Reality? Political Parody on the Web in Campaign '96," Critical Studies in Mass Communication 15, 306-324, (1998). Victoria Carty, "The Internet and Grassroots Politics: Nike, the Athletic Apparel Industry and the Anti-sweatshop Campaign," TAMARA: Journal of Critical Postmodern Organization Science 1(2), 34-47, (2001).
[7] Leslie C. Rochat, "Comment: 'I See What you're Saying': Trademarked Terms and Symbols as Protected Consumer Commentary in Consumer Opinion Websites," 24 Seattle Uni. L. R. 599 (2000).
[8] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
[9] Eric D. Paulsrud+, "Electronic Commerce in the 21st Century: Article the First Amendment on the Internet: Challenges in A New Media," 27 Wm. Mitchell L. Rev. 1637 (2001).
[10] Keren Levy, "Trademark Parody: A Conflict Between Constitutional and Intellectual Property Interests," 69 Geo. Wash L. Rev. 425 (2001).
[11] Matthew D. Bunker, "Trespassing Speakers and Commodified Speech: First Amendment Freedoms Meet Private Property Claims," Journalism and Mass Communication Quarterly, 77 (4), p. 713 (2000).
[12] Kent R. Middleton, Robert Trager, and Bill F. Chamberlin, The Law of Public Communication (MA: Allyn & Bacon, 2002).
[13] Ibid.
[14] Merriam-Webster 's College Dictionary. Online at http://www.m-w.com/dictionary
[15] 17 U.S.C. section 107.
[16] Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (U.S. Supreme Court 1994).
[17] Tin Pan Apple, Inc. v. Miller Brewing Co., Inc. 737 F. Supp. 826 (S.D.N.Y. 1990)
[18] Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (U.S. Supreme Court 1994). p.586.
[19] Dr. Pepper Co. v. Sambo's Restaurant, Inc. 517 F. Supp. (S.D.N.Y. 1981).
[20] Mandeline Johnson and Ursula Spilger, "Legal Considerations When Using Parodies in Advertising," Journal of Advertising 29 (4), 77-86.
[21] Lawrence Lessig, David Post, and Eugene Volokh, "Cyberspace Law for Non-Lawyers" Online at http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
[22] A&M Records v. Napster, 239 F 3d 1004 (9th Cir. 2001).
[23] Vicarious infringer is found "when some has the right and ability to supervise the infringer's activity and benefits from the infringement." See Kent R. Middleton, Robert Trager, and Bill F. Chamberlin, The Law of Public Communication (MA: Allyn & Bacon, 2002). P. 232
[24] Deborah Tussey, "From Fan Sites to Filesharing: Personal Use in Cyberspace," 35 Ga. L. Rev. 1129 (2001).
[25] 15 U.S.C.A. sec 1127 (West Supp. 1996)
[26] John H. Oram, "Will the Real Candidate Please Stand Up?: Political Parody on the Internet," 5 Intell. Prop. L. 467 (1998).
[27] Lymbe Eko, "Trademark Parody and The Mass Media: Going Beyond Survey Evidence in the Determination of 'A Likelihood of Confusion'," 3 Comm. L. & Pol'y 589-608 (1998).
[28] Bally Total Fitness v. Faber 29 F. Supp. 2d 1161 (C.D. Cal. 1998) III
[29] Federal Trademark Dilution Act of 1995, 15 U.S.C. 1125 (c), 1127 (1994 & Supp. 1995).
[30] Panavision v. Toeppen, 141 F. 3d 1316, 1318-19 (9th Cir. 1998)
[31] Cybergriping is registering domain names in the form of the target company name plus sucks or anti, and its main goal is not to profit but to create a forum site to criticize the target company. On the other hand, cybersquatting is an attempt to profit by reserving domain names composed of someone else's registered marks and later reselling or licensing those domain names back to the rightful owner of the mark. See Allon Lifshitz, "Recent Development: Cybersquatting," 38 Harv. J. on Legis. 529 (2001). Eric D. Paulsrud+, "Electronic Commerce in the 21st Century: Article the First Amendment on the Internet: Challenges in A New Media," 27 Wm. Mitchell L. Rev. 1637 (2001).
[32] Lawrence Lessig, David Post, and Eugene Volokh, "Cyberspace Law for Non-Lawyers" Online at http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
[33] Bally Total Fitness v. Faber 29 F. Supp. 2d 1161 (C.D. Cal. 1998)
[34] People for the Ethical Treatment of Animals, Inc. v. Michael T. Doughney, 113 F. Supp. 2d 915 (2000).
[35] Leslie C. Rochat, "Comment: 'I See What you're Saying': Trademarked Terms and Symbols as Protected Consumer Commentary in Consumer Opinion Websites," 24 Seattle Uni. L. R. 599 (2000).
[36] Kent R. Middleton, Robert Trager, and Bill F. Chamberlin, The Law of Public Communication (MA: Allyn & Bacon, 2002). P.83
[37] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[38] Gyong Ho Kim and Anna R. Paddon, "Digital Manipulation As New Form of Evidence of Actual Malice in Libel and False Light Cases," Communication and the Law, 57-73, (1999)
[39] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
[40] New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
[41] Compared to private figures, public figures have less protection from the law of libel, because the law assumes that public figures can take care of themselves. See Lawrence Lessig, David Post, and Eugene Volokh, "Cyberspace Law for Non-Lawyers" Online at http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
[42] Dustin Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (2001)
[43] Lawrence Lessig, David Post, and Eugene Volokh, "Cyberspace Law for Non-Lawyers" Online at http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
[44] Digital Millenium Copyright Act, 17 U.S.C.
[45] Lawrence Lessig, David Post, and Eugene Volokh, "Cyberspace Law for Non-Lawyers" Online at http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
[46] Religious Technology Center v. Netcom, 907 F. Supp. 1361 (1995).
[47] Cubby, Inc. v. CompuServe, Inc. 776 F. Supp 135 (SDNY 1991).
[48] Stratton Oakmont, Inc. v. Prodigy Services Co., 24 Media L. Rep. 1126 (1995).
[49] Lawrence Lessig, David Post, and Eugene Volokh, "Cyberspace Law for Non-Lawyers" Online at http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
[50] Matthew D. Bunker, "Trespassing Speakers and Commodified Speech: First Amendment Freedoms Meet Private Property Claims," Journalism and Mass Communication Quarterly, 77 (4), p. 713 (2000).
[51] Ibid.
[52] Keren Levy, "Trademark Parody: A Conflict Between Constitutional and Intellectual Property Interests," 69 Geo. Wash L. Rev. 425 (2001).
[53] Keren Levy, "Trademark Parody: A Conflict Between Constitutional and Intellectual Property Interests," 69 Geo. Wash L. Rev. 425 (2001).
[54] For instance, a student operating a site satirizing Microsoft's partnerships with universities, which featured images of Bill Gates as Adolph Hitler, received a cease-and-desist letter from Microsoft advising him to seek counsel from an attorney competent in the law of domain names, trademark, copyright, publicity rights, and the First Amendment. See Deborah Tussey, "From Fan Sites to Filesharing: Personal Use in Cyberspace," 35 Ga. L. Rev. 1129 (2001).
[55] Mandeline Johnson and Ursula Spilger, "Legal Considerations When Using Parodies in Advertising," Journal of Advertising 29 (4), 77-86.