Thursday, August 5, 2010

Making Fun of Betty Crocker

Dear Rich: We are doing a show and I am going to make fun of Betty Crocker (not even a real person but a trademark). Is this legal? What is the liability...if any? How did Dan Aykroyd get away with making fun of Julia Child? I know he didn't ask Julia - because I met her when she was visiting The Culinary Institute of America and she told me that.
Wow you met Julia Child? How cool is that? The Dear Rich Staff never met any famous chefs although we met a few chefs who should be famous like the folks who do the cooking at our favorite seafood hangout (no FTC disclaimer needed because we're not getting any free calamari).
The rules of parody. When it comes to famous people and famous trademarks, you've got a first amendment right to parody them (even the ever-changing Betty). However, that doesn't mean the Betty C trademark owners can't or won't sue. It just means you're more likely to win if you can demonstrate it's clearly a parody. Bear in mind that offensive parodies are the ones most likely to trigger lawsuits. For instance, lawsuits were filed over lewd photos of the Pillsbury Doughboy and over nude Barbie doll imagery (entitled "Malted Barbie" and "The Barbie Enchiladas.") Although the artist in the case involving Barbie dolls eventually won his claim, it required substantial legal effort and expense. So weigh the legal consequences carefully before creating a parody.
A trademark parody is less likely to run into problems if it doesn't compete with the trademarked goods and services and doesn't confuse consumers--that is, they get the joke and don't think the parody product comes from the same source as the trademarked goods. Also, keep in mind that not all humorous uses are parodies. To avoid trouble, you should specifically poke fun at the trademark, not use the trademark to poke fun at something else.