September 7, 2012
Generally, if a work can make a legitimate argument that it is commentary, such as parody or satire, courts will be reluctant to punish its creator even if he or she uses trademarked or copyrighted material. Think Andy Warhol and Campbell’s Soup cans.
Now, as courts have gone through the process of defining the parameters of the commentary exception, what sort of commentary do you think they had in mind? Certainly editorial cartoons, satirical essays, artwork and the like. But what about pornography?
For reasons I don’t quite understand and can’t really research on my work computer, the adult entertainment industry has really gotten into parodies lately.
In 2008, Hustler defended its production of a video that, in the interest of good taste, I will call “Who’s Having Liaisons With Paylin” as commentary on Sarah Palin’s image and politics (here’s a completely safe-for-work article about that film’s star and her relationship with Palin, by the way. It’s actually interesting). Subsequent parodies, spoofs and satires on “21 Jump Street,” “The Office” and, for reasons I don’t want to ponder, “The Smurfs” have followed. I interpret this flourishing to mean that “commentary” adult entertainment is popular enough to justify its continued production.
This trend of pornographic parodies has gone a little too far for famously happy-go-lucky Ben and Jerry’s, though. The ice cream maker is suing the maker of a line of “Ben and Cherry’s” adult videos, claiming it is infringing on Ben & Jerry’s trademarks and besmirching the company’s good name. It doesn’t help that the covers of the videos seem to borrow artistic elements readily identifiable as those on Ben & Jerry’s labels, or that titles like “Boston Cream Thigh” and “Peanut Butter D-Cup” seem directly inspired by real flavor names such as “Boston Cream Pie” and “Peanut Butter Cup.”
I have a hard time believing Ben & Jerry’s will get too far with the trademark infringement claim. Although it’s logical to argue that creating an association with a line of pornographic videos does sully the very G-rated company’s reputation, Ben & Jerry’s loses a little steam with me when it tries to act like it’s the very first entity ever to name anything “Peanut Butter Cup” or “Boston Cream Pie.”
But hey, I could be wrong. Because it concerns the commentary exception, I’ll be following this case in the future — in legitimate media outlets at work and with my boss’ full knowledge of why I am looking for this coverage, of course.