Tag: fair use


Is Generative AI Fair Use?


Is Generative AI Fair Use?:
What the Courts Are Saying About AI and Copyright Infringement

Generative AI concept: hands on a laptop with floating AI icons and charts above the screen

Generative AI, OECD (Accessed Sept. 22, 2026), https://www.oecd.org/en/topics/generative-ai.html

On September 4, 2026, the Seattle Times filed a lawsuit against Microsoft and OpenAI, claiming that the tech giants illegally stole their articles to train their AI models ChatGPT, Microsoft Copilot, and Bing AI.[1] Together with Newsday, a Long Island-based newspaper, the Seattle Times alleged that Defendants bypassed Seattle Times’ and Newsday’s online paywalls to scrape content that they should have paid for.[2] Plaintiffs filed in federal court in the Southern District of New York, seeking that Defendants cease using and destroy any remaining copies of the illegally obtained articles.[3]

The action brought by the Seattle Times and Newsday is the latest in a line of lawsuits by American writers and copyright holders alleging that AI companies have engaged in copyright infringement on an unprecedented scale. Last year, the New York Times sued Perplexity AI, claiming that the tech startup was copying millions of its articles to train its AI products.[4] In July 2025, a group of authors settled a class action suit against Anthropic, the company behind the AI model Claude. The lawsuit settled for $1.5 billion, the largest payout in the history of US copyright law.[5]

These lawsuits also have major political implications. In September 2026, the US government weighed in for the first time on the question of AI and copyright. In a lawsuit titled In Re: OpenAI, Inc. Copyright Infringement Litigation,[6] the US threw its weight behind AI development. In a Statement of Interest filed on September 1, 2026 with the Southern District of New York, the US stated that it has a “strong interest in this court rejecting any argument that training LLMs on copyrighted texts violates copyright law.”[7] Its justification? International politics. Quoting President Trump, the brief emphasized the US’s commitment to “sustain and enhance America’s global AI dominance.”[8]

Seattle Times v. OpenAI: The Claims

Columns of a United States Court House seen from below

Hiroko Masuike, New York Times (Accessed Sept. 22, 2026) https://www.nytimes.com/2014/12/26/nyregion/a-new-york-court-celebrates-its-status-as-the-nations-oldest-but-others-arent-so-sure.html

But what are the courts actually saying? To answer that, a closer look at the claims brought by copyright holders is warranted. The latest lawsuit from the Seattle Times and Newsday provides an interesting case study.

The Seattle Times’ and Newsday’s copyright claims against OpenAI and Microsoft fall into two major categories. The first claim is copyright infringement, which is a violation of federal law codified under 17 U.S.C. § 501. The second claim is a violation of the Digital Millennium Copyright Act (“DMCA”). The DMCA is a portion of US copyright law amended in 1998 designed to address the rapidly-evolving relationship between copyright and the burgeoning Internet.[9]

17 U.S.C. § 501 provides that “[a]nyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright or right of the author.”[10] In Seattle Times v. OpenAI, the Plaintiffs allege precisely that. The Seattle Times alleges that, “[b]y reproducing, storing, and processing copies of Plaintiffs’ works to build training datasets and to train, fine-tune, and ground Defendants’ GenAI models, and by disseminating generative output containing copies and derivatives of Plaintiffs’ works,” OpenAI and Microsoft have directly infringed on the Seattle Times and Newsday’s copyright.[11]

The Seattle Times also alleges a similar copyright violation under the DMCA. The DMCA, among other things, specifically protects a copyright holder’s “copyright management information” (“CMI”). CMI includes the name and title of the work as well as any authors of the work. The DMCA, at 17 U.S.C. § 1202, prohibits anyone from altering or removing CMI from any work or from distributing any work knowing that CMI has been removed. To prove copyright infringement under 17 U.S.C. § 1202, a plaintiff must show that a defendant knew that CMI was removed or altered, and that they knew its distribution would “induce, enable, facilitate, or conceal an infringement.”[12]

In their complaint, the Seattle Times and Newsday allege that OpenAI and Microsoft intentionally removed the Seattle Times’ and Newsday’s CMI from their works, and that OpenAI and Microsoft knew that doing so would “induce, enable, facilitate, or conceal infringement” of the Seattle Times’ and Newsday’s copyrights.[13] Plaintiffs also showed that by simply copy-and-pasting a Seattle Times article’s headline and URL into ChatGPT, the model returned nearly four paragraphs verbatim from the original article.[14]

Fair Use: A Limitation on Copyright Enforcement

Fair use scales balancing rightsholders against innovators, creators, and consumers

Fair Use Decoded, Re:Create Coalition (Accessed Sept. 22, 2026), https://recreatecoalition.org/resources/fair-use-decoded/

Despite the numerous copyright claims the Seattle Times has against OpenAI and Microsoft, the Defendants have a powerful defense: fair use. The fair use doctrine is a carve-out in US copyright law that allows for the use of copyrighted materials in certain contexts. Specifically, fair use protects the use of copyrighted materials for “purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research.”[15]

The rationale behind fair use is one of promoting innovation and free speech; it allows some flexibility in how courts must enforce copyright law, so that copyright does not “stifle the very creativity which that law is designed to foster.”[16] The law provides a four-factor test for courts to determine whether the use of a copyrighted work falls under fair use. Courts consider:

(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.[17]

Fair use is an affirmative defense against an alleged infringing use. A defendant accused of copyright infringement need not claim that they didn’t violate a plaintiff’s copyright, only that they did so in a way that falls under fair use. If a court finds that fair use applies, the use is excused and can lead to the dismissal of the case entirely.[18]

Claiming fair use is the overwhelmingly popular defense for AI companies accused of copyright infringement.[19] And some courts are agreeing with them.

What Courts Are Saying: Bartz v. Anthropic

Judge's gavel on a sound block with brass scales of justice in the background

The Decision, New York State Unified Court System (Accessed Sept. 22, 2026), https://www.nycourts.gov/help/after-case-over/decision

Two significant cases, both coming from California federal court in June 2025, have come down with strong arguments in favor of finding fair use when AI companies use copyrighted works to train their large language models.

In Bartz v. Anthropic PBC, authors of copyrighted books brought a putative class action against Anthropic, claiming that Anthropic made unauthorized copies of their works and used those copies to train its large language model. Judge William Alsup, writing for the Northern District of California, analyzed Anthropic’s use of the authors’ works, weighing each of the four fair use factors, and ultimately decided that Anthropic’s usage fell under fair use.

Most significantly, the court found that OpenAI’s use was “quintessentially transformative.” Judge Alsup wrote that Anthropic’s large language model did not merely duplicate the authors’ works, but acted “[l]ike any reader aspiring to be a writer[.] Anthropic’s LLMs trained upon works not to race ahead and replicate or supplant them[,] but to turn a hard corner and create something different.”[20] The authors did not allege that Claude could directly produce copies of their work—thus, the court found no “traceable connection” between the model’s output and the authors’ works.[21]

The court also found that Anthropic’s use of the authors’ works would not have a detrimental effect on the value of their original works. The authors argued that the use of generative AI would lead to an explosion of competitive works, but the court did not agree. Judge Alsup wrote that the authors’ argument was “no different than it would be if they complained that training schoolchildren to write well would result in an explosion of competing works.”[22]

Judge Alsup found that all but one of the fair use factors favored Anthropic. Alsup granted summary judgment in favor of Anthropic on the issue of Anthropic’s use of copyrighted works in training data.

Pumping the Brakes: Kadrey v. Meta Platforms

While Judge Alsup came down conclusively in favor of AI, Judge Vince Chhabria, also a judge in California’s Northern District, cautioned against granting AI companies free rein to train their models on copyrighted material. Chhabria conducted the same four-factor fair use test in Kadrey v. Meta Platforms, an action brought by various copyright holders against Meta and its large language model, Llama.[23] While Judge Chhabria also held that Meta had successfully established a prima facie showing of fair use, Chhabria suggested a pathway for future plaintiffs to survive a motion to dismiss.

Chhabria agreed with Alsup that Meta’s use of copyrighted work to train its AI model was transformative. However, he disagreed with Alsup’s analysis of AI’s potential market effect. Chhabria argued that Alsup’s analogy equating AI to a horde of schoolchildren was “inapt.” “[W]hen it comes to market effects,” Chhabria wrote, “using books to teach children to write is not remotely like using books to create a product that a single individual could employ to generate countless competing works with a miniscule fraction of the time and creativity it would otherwise take.”[24] Chhabria noted that “[b]ecause the issue of market dilution is so important in this context, had the plaintiffs presented any evidence that a jury could use to find in their favor on the issue, factor four would have needed to go to a jury.” (emphasis added).[25]

Chhabria also acknowledged the implicit injustice in allowing AI companies to profit directly from the works of copyright holders while paying them nothing in return. “No matter how transformative LLM training may be,” Chhabria wrote, “it’s hard to imagine that it can be fair use to use copyrighted books to develop a tool to make billions or trillions of dollars while enabling the creation of a potentially endless stream of competing works.”[26]

Returning to Seattle Times v. OpenAI: What’s the News?

What does this mean for the Seattle Times and Newsday and their case against OpenAI and Microsoft? Plaintiffs likely have an uphill battle ahead of them, but there may be a few key factors that could turn the case in their favor.

Seattle Times’ first favorable fact is on the third factor: the amount and substantiality of OpenAI’s use. While the plaintiff authors in Bartz v. Anthropic did not submit any evidence that Claude could produce replicas of their copyrighted works, the Seattle Times does. In their complaint, they specifically allege that ChatGPT will regurgitate, verbatim, large parts of the Seattle Times and Newsday’s copyrighted material, effectively bypassing the newspapers’ online paywall.[27] Since the third fair use factor is primarily an analysis of the extent to which the allegedly infringing use functions as a competitor to the original work, the Seattle Times may have a better case than the plaintiffs in Bartz v. Anthropic.

Second, the Seattle Times has a blueprint for surviving a motion to dismiss, thanks to the opinion in Kadrey v. Meta Platforms. While not a binding authority, federal courts regularly look to other jurisdictions for instruction, particularly in cases of first impression. If the Seattle Times can produce a triable issue of fact that OpenAI has diluted the market for paid news sources, that showing may be sufficient to overcome a motion to dismiss on a fair use argument.

The future of AI development is on a high-speed collision course with existing copyright law, and only time will tell how—or if—both sides will weather the impact. Generative AI is a rapidly evolving market with trillions of dollars behind it, and proponents of AI growth may claim that copyright law must evolve or be left behind. But large language models are only as good as the data they are trained on. Ignoring the impact that training these models has on the people creating the works that serve as the foundation for these models is a convenient but unjust shortcut in the pursuit of tech and profit. Copyright law still has a place in ensuring that people are compensated for the works they produce. Judge Chhabria put it succinctly: “If using copyrighted works to train the models is as necessary as the companies say, they will figure out a way to compensate copyright holders for it.”[28]

[1] Chase DiBenedetto, OpenAI, Microsoft Face Copyright Lawsuit from Local Newspapers, Mashable (Sept. 6, 2026), https://mashable.com/tech/openai-microsoft-face-another-publishing-lawsuit.

[2] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[3] Seattle Times, Newsday sue OpenAI, Microsoft, alleging copyright infringement, Reuters (Sept. 4, 2026), https://www.reuters.com/legal/government/seattle-times-newsday-sue-openai-microsoft-alleging-copyright-infringement-2026-09-05/.

[4] Jaspreet Singh, New York Times Sues Perplexity AI for ‘illegal’ Copying of Content, Reuters (Dec. 5, 2025), https://www.reuters.com/legal/litigation/new-york-times-sues-perplexity-ai-infringing-copyright-works-2025-12-05/

[5] Blake Brittain, AI Copyright Battles Enter Pivotal Year as US Courts Weigh Fair Use, Reuters (Jan. 5, 2026), https://www.reuters.com/legal/government/ai-copyright-battles-enter-pivotal-year-us-courts-weigh-fair-use-2026-01-05/.

[6] In Re: OpenAI, Inc. Copyright Infringement Litigation, Docket No. 1:25-md-03143 (S.D.N.Y. Apr 11, 2025)

[7] Blake Brittain, US government backs OpenAI in New York Times copyright case, Reuters (Sept. 2, 2026), https://www.reuters.com/legal/litigation/us-government-backs-openai-new-york-times-copyright-case-2026-09-02/.

[8] Statement of the Interest of the United States, In Re OpenAI Copyright Infringement Litigation, Docket No. 1:25-cv-03483-SHS-OTW.

[9] The Digital Millennium Copyright Act, US Copyright Office (Accessed Sept. 22, 2026), https://www.copyright.gov/dmca/.

[10] 17 U.S.C § 501.

[11] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[12] Mango v. BuzzFeed, Inc., 970 F.3d 167, 171 (2d Cir. 2020).

[13] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[14] Id.

[15] 17 U.S.C. § 107.

[16] Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 527 (2023).

[17] 17 U.S.C. § 107.

[18] Bell v. Eagle Mountain Saginaw I.S.D., 27 F.4th 313, 320-21 (5th Cir. 2022).

[19] Blake Brittain, AI Copyright Battles Enter Pivotal Year as US Courts Weigh Fair Use, Reuters (Jan. 5, 2026), https://www.reuters.com/legal/government/ai-copyright-battles-enter-pivotal-year-us-courts-weigh-fair-use-2026-01-05/.

[20] Bartz v. Anthropic PBC, 787 F. Supp. 3d 1007, 1022 (N.D. Cal. 2025).

[21] Id. at 1030.

[22] Bartz, 787 F. Supp. 3d at 1032.

[23] Kadrey v. Meta Platforms, Inc., 788 F. Supp. 3d 1026 (N.D. Cal. 2025).

[24] Id. at 1036.

[25] Id. at 1060.

[26] Id.

[27] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[28] Kadrey v. Meta Platforms, Inc., 788 F. Supp. 3d 1026, 1036 (N.D. Cal. 2025).



Copyrighting Tattoos in Sports Video Games: Can LeBron James License His Image?


Tattoos are permanent, often complex, creative, and original pieces of work created by a tattoo artist. Recently, litigation has come up regarding tattoos on famous athletes. While most issues involving tattoos on athletes are more easily handled — such as J.R. Smith’s tattoo of the brand Supreme on his leg1 — there are questions of whether a tattoo is subject to copyright protection when it is prominently displayed and reproduced on a famous athlete in a video game. This question is at the center of a lawsuit filed by Solid Oak Sketches against Take Two Interactive Software as well as two other producers of the popular NBA 2K video games based on the video games’ reproductions of players’ tattoos, including LeBron James.2

 

 

Are Tattoos Protected By Copyright Laws | NBA 2K videogame | Copyrighting Tattoos in Sports Video Games
Logo for the 2020 version of the NBA 2K videogame

 

A similar issue arose in 2011, in which tattoo artist S. Victor Whitmill claimed to have copyright ownership of Mike Tyson’s face tattoo, with the tattoo in question given to Tyson in 20033. Whitmill sued Warner Bros., claiming that the popular film Hangover 2 infringed on his work when they reproduced Tyson’s tattoo on a main character’s face4. While Whitmill’s complaint failed to temporarily enjoin the studio from releasing the film in theaters, the case was settled out of court and now leaves an underwhelming amount of case law on the subject.5

 

 

Are Tattoos Protected By Copyright Laws | Mike Tyson tattoo | Copyrighting Tattoos in Sports Video Games
Mike Tyson with his famous tattoo displayed prominently

 

The Copyright Act of 1976 gives protection to artists that establish that: (1) their creation is the type of work that is protectable; (2) their creation is an original and creative work; and (3) the creation is affixed to a tangible medium for expression.6 Further, §  202 of the Copyright Act states that “ownership of a copyright… is distinct from ownership of any material object in which the work is embodied.”7 This means that a tattoo artist does in fact have copyright ownership over original and creative tattoos that they give, even when those tattoos are on another person’s body. However, there is an implied license that allows people to freely and publicly display their tattoos — for example, on television, film, and magazines — so for most people, this is not a problem. 8However, this issue has arisen because LeBron’s tattoos are not only being displayed, but they are being digitally reproduced in a video game, causing an issue for copyright infringement issue.9

 

The company Solid Oak Sketches obtained the copyrights for two of LeBron James’ four tattoos in question — the portrait of his child and the area code — before suing in 2016 because they were used in the NBA 2K series.10 Take Two argues a fair use defense, stating that the tattoos are covered under fair use and are not a critical component of the video games, seen only fleetingly or rarely.11 However, that argument may not hold water due to the time and energy put into recreating both the athletes and tattoos with incredible accuracy.12 Further, this argument did not survive the motion to dismiss, with Judge Laura Taylor Swain finding that the defenses presented by Take Two are fact-intensive and will require more evidence.13

 

Are Tattoos Protected By Copyright Laws | Copyrighting Tattoos in Sports Video Games | Lebron James in NBA 2K 2014
Lebron James in real life (left) and Lebron James in NBA 2K 2014 (right)

 

New York University intellectual property law professor Christopher Jon Sprigman says to the New York Times that Solid Oak’s lawsuit “amounts to a shakedown and copyright trolling,” stating further that “[t]hey shouldn’t be allowed to tell LeBron James that he can’t take deals to license his likeness… the ability of the celebrity, or really anyone, to do that is an element of their personal freedom.”14 LeBron James states that his tattoos are a part of his “persona and identity,” saying that if he is not shown with his tattoos, it would not be an accurate depiction of himself.15 In a Declaration of Support for the defendants from LeBron James, he states that the four tattoos in question were “inked in Akron, Ohio,” and in each case, he had a conversation with the tattooist about what he wanted inked on his body. 16

 

The outcome of this case will set an important precedent on whether or not tattoo artists can demand monetary compensation every time a celebrity’s likeness has been reproduced. Since the rise of litigation, players’ unions and sports agents have been advising athletes to secure licensing agreements before they get tattooed, in order to protect their future interests.17 This way, the athletes have secured their rights while giving artists have an incentive to sign rather than pass up a celebrity client who could be a walking advertisement for their art18.

 

1 Cam Wolf, NBA Tells J.R. Smith to Cover Up His Supreme Tattoo Or Else, GQ (Oct. 1, 2018), https://www.gq.com/story/jr-smith-supreme-tattoo-nba?verso=true (in which Cleveland Cavaliers’ J.R. Smith was told by the National Basketball Association that they would fine him for every game of the season that he failed to cover up the Supreme logo on his leg, citing the League’s Collective Bargaining Agreement, which states that ‘a player may not, during any game, display any commercial, promotional, or charitable name, mark, logo, or other identification… on his body.’).

 

 2 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.

 

3 Christie D’Zurilla, ‘Hangover 2’ Tattoo Lawsuit Over Mike Tyseon-style Ink is Settled, Los Angeles Times (June 22, 2011), https://latimesblogs.latimes.com/gossip/2011/06/hangover-tattoo-dispute-ed-helms-hangover-2-tattoo.html.

 

 4 Id.

 

5 Id.

 

6 1976 General Revision of Copyright Law, Pub. L. No. 94-553, 90 Stat. 2541.

 

7 17 U.S.C. §  202.

 

8 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.

 

 9 Id.

 

 10 Id.

 

 11 Bryan Wiedey, Tattoos in Sports Video Games Face Legal Issue, Sporting News (Oct. 19, 2018), http://www.sportingnews.com/us/other-sports/news/madden-lawsuit-over-tattoos-nba-2k-lebron-james-ea-sports-2k-sports/16xvqkb1d2hbm1lzs6u3iljaap.

 

 12 Id.

 

 13  Thomas Baker, NBA 2K Tattoo Copyright Suit Offers Two Compelling Legal Arguments, but Only One Seems Practical, Forbes (Jan. 4, 2019), https://www.forbes.com/sites/thomasbaker/2019/01/04/lebron-smartly-sides-with-the-producers-of-nba-2k-in-tattoo-copyright-case-but-will-that-be-enough/#4e08f33c7663.

 

 14 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.

 

 15 Solid Oak Sketches, LLC v. 2K Games, Inc. and Take-Two Interactive Software, 1:16-cv-00724, ECF No. 134 (Aug. 24, 2018). (Found at https://www.scribd.com/document/386980896/2018-08-24-Declaration-dckt-134-0#from_embed).

 

 16 Id., at 1.

 

17 Jason M. Bailey, Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers, New York Times (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/style/tattoos-video-games.html.

 

18 Id.



Trademark Parodies – Flawed or Fair use?


The reworked “fair use” defense has provoked debate because it provides excessively broad immunity to certain types of parodies and other expressive uses of trademarks.1 This Article will explore whether the Trademark Dilution Revision Act (TDRA) promotes a flawed treatment of parodies with regard to sub-clauses that provide selective shelter, and exonerating some parodies from liability while impugning others.2 The principal flaw that is discussed in this Article relates to the parody provision and its application of the trademark use test for determining whether a parody is fair. The provision is pliable in that it can be both lenient and strict on parodies.

 

I. Trademark Dilution Revision Act

Trademark, Trademark Dilution Revision Act, United States Patent and Trademark Office, trademark parodies | Law firm of Dayrel sewell
Depiction of the registered trademark symbol

 

The language of the TDRA appears to implicitly divide parodies into two distinct groups: source denoting parodies and non-source denoting parodies. Non-source denoting parodies are artistic parodies- that are not used as trademarks and are treated with leniency, whereas source-identifying parodies generally receive strict treatment3. A plain reading of the provision appears to confer blanket immunity to all parodies as long as they are not being utilized as indicators of source(s) for goods or services4. On the other hand, it imposes liability on parodies that function as trademarks without suitable inquiry into the nature or impact of the parody in question.5,6 This parody approach fails to adequately assess forms of harm since it focuses exclusively on the classification of the parody’s status, rather than the effect.

 

The focus of inquiry should be on the effect of the parody in relation to the original trademark’s distinctive quality or reputation, with consideration regarding the investment to establish such distinctiveness, and not just on the status and presence of commercial or trademark use.  However, this is not the case because the TDRA’s fair use provision fails to appropriately distinguish parodies that convey an artistic or social message from those that tarnish a senior mark.7  The broad language of the exception allows tarnishing use to be exempt from liability so long as the parody in question is not utilized as a source indicator.8 The “fair use” provision appears to provide automatic immunity to non-source denoting parodies, as it stipulates that only these types of parodies that do not function as designators of source, are eligible for exemption under the provision.9 The exemption is justified by the First Amendment.

 

II. Exploring the TDRA Flaw

 

Parodies are expressive by nature.10 For this reason, some parodist choose to present their parodies as “works of art” to the public; such representations can be made without any connection to goods or services, and occasionally, without the expectation of commercial gains.11

 

Still, these parodies can be harmful to the original trademark owner when free-riding occurs, or some harm to the goodwill of the mark because of confusion or false misrepresentation. Free-riding occurs when the parodist receives a benefit from the association between their mark and the well-known mark12. Although some have argued these actions are permissible because they align with the First Amendment justification, and ensure that the original owner shall not be able to monopolize the famous creation, this view fails to consider the investment the original owner sacrificed to establish the identity of being “well-known” or “famous.” As a result, parodists can reap where they have not sown. 

 

Courts have confirmed that the TDRA applies different treatments to parodies based on their categorial status. The TDRA enactment amended the fair use defense by adding an expressed defense for noncommercial use; this plain language of the provision explicitly excluded source denoting parodies. Therefore, courts relied on the main dilution factors provided by the Act, instead of the fair use exception, to immunize source denoting parodies from liability. 13

 

In Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, the court confirmed that the parody clause in the fair use provision is not exhaustive in its coverage of non-dilutive parodies.14 This case set a precedent which allows parodies that are being used as a trademark to sell goods in commerce to be exempted from liability for dilution, in certain circumstances.15 The court’s analysis indicates that a parody does not necessarily need to satisfy the fair use provision in order to be exonerated from liability.16

 

Louis Vuitton, Trademark, trademark parodies
Depiction of the Louis Vuitton logo

 

The courts affirmations justify the concerns with the TDRA’s fair use parody clause, as it demonstrates that the provision is both too broad in some respects, but also too narrow in others.17 The provision is broad as it largely immunizes all non-source denoting parodies from liability without assessing the message communicated by the parody and its effect on the reputation of the mark. If the message promotes a negative impact on the goodwill of the original trademark owner or free-riding occurs, the original owner will have no claim against the parodist, and the First Amendment justification trumps the original owner’s interest or disfavored effects. On the other hand, the provision is too narrow because it excludes certain source-denoting parodies that may not be deserving of protections because of the extraordinary investments original owners take to establish a specialized distinction for the mark. 

 

Allowing protection under these circumstances, permits the parodist to take advantage of trademark owners marketing investments and efforts they may have taken years to establish. Further, the treatment permits free riding. Consequently, the approach to the treatment of parodies effectively ‘dilutes’ trademark owners of the right to obtain an appropriate remedy against parodist who have tarnished their marks by engaging in an unfair or offensive comparison, and parodist who has benefited from the original owner’s investments.

 

An example of these effects is demonstrated in Mattel, Inc. v. Walking Mountain Productions. In this case, the parodist is an artist who posed nude Barbie dolls in photographs that displayed Barbie getting attacked by vintage household appliances.18 Although the artist failed to use the term “Barbie,” the art itself irrefutably involved the trademarked doll and the titles reflected that fact.19 The message of the parody meant to diminish the Barbie persona that was established by Mattel through successful marketing.20 Mattel had purportedly established Barbie as “the ideal American woman” and a symbol of “American girlhood.”21 Is it unfair for a parodist to attempt to destroy the goodwill or reputation of the mark? The law certainly does not think so because such actions are viewed as an exercise of the First Amendment right. 

 

Barbie, trademark, fair use, trademark parodies
Image of a Barbie

 

But what if the only reason the parodist receives an audience or attention is because of “Barbie.” Is the original owner now entitled to a claim? Had it not been for the original owner, the parody would likely have never been created, nor would the parody have received the level of attention attained. But for the original owner’s investments toward establishing the mark’s goodwill, it is likely the parody would be non-existent, or at the very least would not have obtained the level of attention it received. If these photos only receive attention because of “Barbie,” does that mean the parodist is permitted to free-ride off of the famous mark owner’s marketing efforts and investments that may have taken the owner years to establish? Trademark law is permitting parodist to reap what the original owners have taken years to sow! It could take a trademark-owner years to establish a distinct attractiveness in the marketplace. However, a parodist need only use the famous mark under the guise of a parody and receive the same benefits of attractiveness through association, at a fraction of the time and monetary investment that was devoted by the original owner.

 

Under these protections lays the question of fairness, which arises when there is harm from the parodist belittling the reputation of the mark that is being ridiculed.22 Still, the current parody provision does not possess sufficient nuance to assess the type or extent of damage inflicted on the senior mark, caused by the tarnishing effects of the parody.23 Particularly, it fails to provide guidance on the level and quality of ridicule that is considered “acceptable” for a parody.24 This raises some concerns; virtually many cases of non-trademark expressive use would receive protection under the Act. The TDRA arguably tilts the balance too far in favor of non-trademark use parodies. 

 

 1 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 90 (2012).

 

2 Id. at 92.

 

3 Id.

 

4 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 92 (2012); Justin Gunnell, Evaluation of the Dilution-Parody Paradox in the Wake of the Trademark Dilution Revision Act of 2006, 26 CARDOZO ARTS & ENTERTAINMENT 441, 455 (2008).

 

5 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 92 (2012).

 

6 It’s the courts duty to inquire about the nature or impact of the parody which is determined through the infringement factors discussed in the following section.

 

7 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 93 (2012).

 

8 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 93 (2012); Justin Gunnell, Evaluation of the Dilution-Parody Paradox in the Wake of the Trademark Dilution Revision Act of 2006, 26 CARDOZO ARTS & ENTERTAINMENT 441, 455 (2008).

 

9 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 92-93 (2012).

 

10 Id. at 84.

 

11 Id. at 89.

 

12 Iowa State University, Trademark Legal Basics, (Apr. 1, 2019), https://www.trademark.iastate.edu/basics .

 

13 Eugene Lim, Of Chew Toys & Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S Trademark Dilution Revision Act, 35 CAMPBELL L. REV. 83, 99 (2012).

 

14 Id. at 97.

 

15 Id.  at 96.

 

16 Id.

 

17 Id. at 97.

 

18 Mattel Inc. v. Walking Mountain Prods., 353 F. 3d 792 (9th Cir. 2003).

 

19 Id.

 

20 Successful marketing requires a huge investment of time, money, and consistency over a period of time.

 

21Mattel Inc. v. Walking Mountain Prods., 353 F. 3d 792 (9th Cir. 2003).

 

22 Id. at 93.

 

23 Id.

 

24 Id.