Here's my second suggestion for an Intellectual Property Responsibility: IP owners shouldn't try to use their copyright and trademark rights to stifle criticism of their product. A good example is the unfolding saga of Barney the Dinosaur.
Barney, as you probably know, is that tubby, purple PBS dinosaur who loves everybody. Some kids find him charming; most adults find him annoying. Some adults go somewhat further in their dislike. One is Stuart Frankel, who maintains a website arguing that Barney is the source of all evil. Here's a sample of Mr. Frankel's work:
All in good fun. But not apparently to Lyons Partners, a firm which owns the IP rights in the Barney character. Lawyers acting for Lyons Partners fired off a bunch of cease and desist letters to web sites critical of Barney, including Mr. Frankel's. “It is unlawful…to use this property without the permission of Lyons Partnership,” the lawyers wrote. “These materials must be immediately removed.”
That ain't right. The fair use doctrine gives wide latitude toward parodic uses of copyrighted works, and Frankel's use is certainly parodic. As for trademark law, there is no likelihood that Frankel's parodic use of the Barney character would cause consumers to mistakenly believe that the “real” Barney character was involved. And in any event, it turns out that Barney has priors. In 1999, the Fifth Circuit threw out trademark claims made against The Famous Chicken, a sports mascot who had taken to beating up a Barney-like character at baseball games. The opinion deserves to be read in full, but here's an excerpt (internal citations removed):
This case involves a dispute over the use of the likeness of “Barney,” a children's character who appears in a number of products marketed to children. Barney, a six-foot tall purple “tyrannosaurus rex,” entertains and educates young children. His awkward and lovable behavior, good-natured disposition, and renditions of songs like “I love you, you love me,” have warmed the hearts and captured the imaginations of children across the United States. According to Lyons, the owner of the intellectual property rights for Barney and the plaintiff in the suit below, the defendants–Giannoulas d/b/a The Famous Chicken and TFC, Inc. (“TFC”), the owner of the intellectual property rights to the Chicken–sought to manipulate Barney's wholesome image to accomplish their own nefarious ends.
The Chicken, a sports mascot conceived of and played by Giannoulas, targets a more grown-up audience. While the Chicken does sell marketing merchandise, it is always sold either by direct order or in conjunction with one of the Chicken's appearances. Thus, the Chicken's principal means of income could, perhaps loosely, be referred to as “performance art.” Catering to the tastes of adults attending sporting events, most notably baseball games, the Chicken is renowned for his hard hitting satire. Fictional characters, celebrities, ball players, and, yes, even umpires, are all targets for the Chicken's levity. Hardly anything is sacred.
And so, perhaps inevitably, the Chicken's beady glare came to rest on that lovable and carefree icon of childhood, Barney. Lyons argues that the Chicken's motivation was purely mercenary. Seeing the opportunity to hitch his wagon to a star, the Chicken incorporated a Barney look-alike into his acts. The character, a person dressed in a costume (sold with the title “Duffy the Dragon”) that had a remarkable likeness to Barney's appearance, would appear next to the Chicken in an extended performance during which the Chicken would flip, slap, tackle, trample, and generally assault the Barney look-alike.
The results, according to Lyons, were profound. Lyons regales us with tales of children observing the performance who honestly believed that the real Barney was being assaulted. In one poignant account related by Lyons, a parent describes how the spectacle brought his two-year-old child to tears. In fact, we are told, only after several days of solace was the child able to relate the horror of what she had observed in her own words–“Chicken step on Barney”–without crying. After receiving such complaints from irate parents who attended the Chicken's performances with their children, Lyons sought to defend this assault on their bastion of child-like goodness and naiveté.
Giannoulas offers a slightly different perspective on what happened. True, he argues, Barney, depicted with his large, rounded body, never changing grin, giddy chuckles, and exclamations like “Super-dee-Dooper!,” may represent a simplistic ideal of goodness. Giannoulas, however, also considers Barney to be a symbol of what is wrong with our society–an homage, if you will, to all the inane, banal platitudes that we readily accept and thrust unthinkingly upon our children. Apparently, he is not alone in criticizing society's acceptance of a children's icon with such insipid and corny qualities. Quoting from an article in The New Yorker , he argues that at least some perceive Barney as a “pot-bellied,” “sloppily fat” dinosaur who “giggle[s] compulsively in a tone of unequaled feeblemindedness” and “jiggles his lumpish body like an overripe eggplant.” [. . .]
Perhaps the most insightful criticism regarding Barney is that his shows do not assist children in learning to deal with negative feelings and emotions. As one commentator puts it, the real danger from Barney is “denial: the refusal to recognize the existence of unpleasant realities. For along with his steady diet of giggles and unconditional love, Barney offers our children a one-dimensional world where everyone must be happy and everything must be resolved right away.”
Giannoulas claims that, through careful use of parody, he sought to highlight the differences between Barney and the Chicken. Giannoulas was not merely profiting from the spectacle of a Barney look-alike making an appearance in his show. Instead, he was engaged in a sophisticated critique of society's acceptance of this ubiquitous and insipid creature. Furthermore, Giannoulas argues that he performed the sketch only at evening sporting events.
The sketch would begin with the Chicken disco dancing. The Barney character would join the Chicken on the field and dance too, but in an ungainly manner that mimicked the real Barney's dance. The Chicken would then indicate that Barney should try to follow the Chicken's dance steps (albeit, by slapping the bewildered dinosaur across the face). At this point, Barney would break character and out-dance the Chicken, to the crowd's surprise. The Chicken would then resort to violence, tackling Barney and generally assaulting Barney. Barney would ultimately submit to the Chicken and they would walk off the field apparently friends, only for the Chicken to play one last gag on the back-in-character naive and trusting Barney. The Chicken would flip Barney over a nearby obstacle, such as a railing.
Sounds fun! In any event, Lyons' lawsuit got nowhere, but that didn't stop them from sending out nasty letters ordering Frankel and other parodists to cease and desist. But now they may be hoisted on their own chutzpah (does that make sense?). The Electronic Frontier Foundation and the very able Akin, Gump IP lawyer Elizabeth Rader (my former colleague at Stanford Law School's Center for Internet and Society) have filed a complaint against Lyons in federal court in New York. The complaint asks the court to declare that Lyon's IP claims are groundless.
That's a good first step. But here's another. How about we establish as Intellectual Property Responsibility #2 that IP owners refrain from sending meritless cease and desist letters in a bid to squelch criticism of their product — here, the Barney character. We live in an open society with a First Amendment, and IP law shouldn't interfere with our ability to make social criticisms.
So how about it? Can we agree just to let people talk about Barney? It's not as if any of these parodists are competing with Barney. If they succeed in turning people off the character, it's because they will convince people that he's loathsome. That's fair, right?