Wednesday, June 9, 2021

I'm guessing Dwyer had the complete set of Wacky Packages stickers

If you're the type of person who would enjoy reading an unpublished master's thesis on parody and copyright, "Messing with the Mouse" by Terence Chua is definitely the one you'd want to read. The main focus is on the conflict between the Disney corporation and a collective of underground comix artists called the Air Pirates (and it's a hell of a story), but it also covers most of the other notable cases that established and severely limited the copyright exemption of art that mocks art.

The resolution of the Starbucks "Consumer Whore" case is particularly relevant. [Emphasis added.]

In 1998, comic book artist Kieron Dwyer created a parody of the Starbuck's Coffee mermaid logo, portraying the mermaid as bare-breasted, holding a cellular phone and a cup of coffee, with "prominent nipples and a navel ring." In place of the "Starbucks Coffee" legend with stars, it had "Consumer Whore" and dollar signs. The "Consumer Whore" parody was only one of a number of parodies that Dwyer had done, including Pokemon, ("Tokemon"), Evian water ("Elian", after the Cuban cause célèbre) and a Microsoft hand icon with the middle finger raised. Dwyer sold T-shirts and stickers with the parody logo through his web site, justifying it by saying that it captured the "crass, rampant commercialism in this country."

Starbuck filed suit in April 1999, getting a temporary restraining order and moving for a preliminary injunction and demanding all T-shirt profits plus damages. Dwyer commented that it was like "carpet-bombing an anthill." Starbucks claimed copyright infringement, trademark infringement and unfair competition. Dwyer's parody made Starbuck's corporate logo "sexually offensive to a substantial portion of the public" and associated it with "conduct that many consumers will find lewd, immoral and unacceptable." It was Air Pirates all over again.

Judge Maxine M. Chesney of the California District Court heard Starbucks' counsel John C. Rawls cite a long line of cases involving "tarnishment" of trademarks, including "Genital Electric", "Buttweiser" and "Gucci Goo" diaper bags, all which were ruled to have degraded the trade marks of the respective companies. On the strength of this, Chesney granted the preliminary injunction, and in June after hearing oral arguments from both sides, made the injunction permanent. However, this order was not made on the basis of unfair use – Chesney found both fair use for Dwyer's parody and lack of market confusion ruling out trademark infringement. However (echoes of Pillsbury), she found that Dwyer's commercial use of the parody by selling T-shirts and stickers violated California's trademark dilution laws. Dwyer was therefore in the strange position of having a legitimate parody but not allowed to display it. Both sides considered it a victory – something that the parties in the Air Pirates case also ultimately did.

Unlike O'Neill, Dwyer did not appeal the case up to the Ninth Circuit, but settled with Starbucks soon after. According to Dwyer, "In our private meetings with the judge, she agreed that Starbucks was overreaching, but she clarified things for me. In essence, she confirmed that the legal system is tilted in favor of Starbucks and every company like it. They can and will tie you up in litigation as long as they want, she said, and maybe you’ll win in the end, but it will cost you a lot of time and money to find out. You may be right, but how much does it matter to you to be the fly in Starbucks’ ointment? Can you walk away from it?" Dwyer took Chesney's advice and walked away, settling for undisclosed terms. One of those terms, however, was definitely not to display the logo again, as it appears nowhere on Dwyer's site.

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