Can you sue someone for parodying your character? Can you sue someone for parodying your character? Or is this part of free speech? One thing I am always wondering is why people won't use &quot;Google&quot; in movies, especially cartoons, but parody real people like Donald Trump. It's like you can't hurt the brand of a company, but you can hurt the brand of a person. What does the law say on this in the United States?
Definitions A brand name is not a &quot;character&quot;. Neither is a real person, unless that person is being used as a character in a work of fiction. I will answer what I think the question intends. One can't really parody a real person, but one can use a person fictitiously. I am using here a narrow definition of &quot;parody&quot;, that one parodies a work by imitating it so as to comment on it, often but not always negatively. I exclude from &quot;parody&quot;: cases where the events of a work are imitated to tell a different story, or the same story in a different setting -- that is &quot;retelling&quot;. (West Side Story is a retelling of Romeo and Juliet, not a parody, in this sense.) I also exclude cases where the form or style of a work is imitated to make a different point, or for general humorous effect. That would be satire but not parody. I am using this narrow sense of parody because it is my understanding that only parody in the narrow sense has been held to be fair use. Satire or retelling is not generally fair use under US law, at least not because of the satire or retelling. Copyright The US Supreme Court has held in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that a commercial parody can be a fair use. The US Eleventh Circuit court extended this holding to novels in Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001), in which it held that Alice Randall's 2001 parody, The Wind Done Gone, was not an infringement of Gone with the Wind But it is important to note that the definition of &quot;parody&quot; used in those cases is significantly more limited than the use sometimes made of the term in artistic circles or by average people. The courts held that a parody was fair use specifically because it commented on the original. A reworking of a story which did not particularly comment on the original, such as West Side Story based on Romeo and Juliet would not be fair use, at least not because it was a reworking/parody. (Of course Shakespeare is not protected by modern copyright, but if it were, West Side Story might be an infringement.) The use of the name or description of a real person in a work of fiction would not be an infringement of copyright, as no copyright covers a real person. Trademark Use of a variant of a protected trademark in such a way that reasonable consumers might be confused into thinking that it was created, approved, endorsed or sponsored by the trademark holder would normally be a trademark infringement. On the other hand a trademark may be used to talk about a product, using the trademark as the name of the product. This is known as nominative use. Thus a character in a book or movie could say &quot;I bought a Ford&quot; or &quot;I looked it up on Google&quot; and it would not be trademark infringement, usually. However, authors and particularly movie-makers do not want to risk a possibly expensive trademark suit and so they often invent product names to avoid any possible risk of trademark infringement claims. The names of people are less often protected than trademarks, although some are. Some fictional characters have their names or images protected as trademarks, but most do not. Use of the name of a real person could not be trademark infringement, unless that person's name was a protected trademark (rare but it sometimes happens). Even then, use would probably be nominative use unless the public would be likely to be confused into thinking that the person had approved or endorsed the work. Defamation If a person is used as a character in a work of fiction, and the character is portrayed in a negative way, this might give rise to a claim for defamation. For that claim to hold up, reasonable people would have to think that the description in the work of fiction also applies to the actual person. The work would have to make false factual statements about the person, that harmed the person's reputation. If the suit were in the US, and the person defamed was a public official or a public figure, the plaintiff would have to prove actual malice. That means proof that statements of fact were made knowing that they were false, or with reckless indifference to the truth. Proof of actual malice is often hard to obtain. Note that a work of fiction can be defamatory if a person is readily recognized, even if the name and some details were changed. For example the movie Citizen Kane was clearly based on the life of William Randolph Hearst, and Hearst is said to have considered a defamation action.
Yes it does. You can do anything at all with a public domain work, and it is not an infringement of copyright. For the matter of that, one could write a forwards attributes to Justinian or Genghis Khan, who newer wrote any such forward at all, and it would not infringe any copyright, nor any right of publicity. It is possible that such claims would constitute False advertising. But if the claim is &quot;obviously absurd&quot; then such laws usually do not apply. What is &quot;obviously absurd&quot; is a judgement call. I recall seeing books in which a &quot;foreword&quot; is attributed to a fictional character. If such a foreword is attributed to a person who is living, that person might have a right to sue under a publicity right theory. In those jurisdictions where such rights last beyond the author's life, such a suit might be filed by an heir within the time such rights are valid, which varies widely.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
You sue the legal person One of the things that distinguishes legal personhood from other structures is the ability to sue and be sued. You can't sue a business name or a trust for example but you can sue a company. I have in fact been required to make adjudication decisions that I know will be unenforceable in court because the applicant named a trust rather than the trustee.
20th Century Fox have a trademark on "Simpsons." They have trademarks on "Bart Simpson", on "D'oh", on "Duff Beer". I would assume that they take their trademarks seriously. What you can't do is to use someone else's trademark to make people believe your commercial product is related to theirs. It's quite reasonable to assume that someone seeing your book in a store would think it is written by the makers of The Simpsons show and therefore buy it. Even if you say that isn't your intention, it is what would happen. I'd try coming up with some different titles, maybe "How to write animated TV shows" with "Example: The Simpsons" (well, you are the writer so you should come up with something better), and take them to a lawyer. And then contact the makers of the show (again asking the lawyer for advice how to do this) because even if your lawyer says the title is fine, that doesn't mean you can't be sued.
Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html
No one can give you a meaningful answer unless you specify what jurisdiction you're in. Assuming you're in the United States: There's no liability for defamation. The company using your picture isn't saying anything about you. Whatever you might feel the implications are, the reasonable reader would not view the ads and conclude that you are actually sick or struggling financially. Even if they would, it is not defamatory to say that someone got sick or that they are struggling financially. As you indicated, those implications would merely be unflattering, and there is no liability for saying something unflattering about someone. There's potential liability for "misappropriation of likeness." One of the four commonly recognized privacy torts covers the misappropriation of a plaintiff's likeness. The classic case would involve the use of a celebrity's name or picture to sell a product that she has not endorsed. Some states allow lawsuits for misappropriation; others do not. Even among the ones that do allow it, there is some variation as to the facts you must prove to win the case. As I recall, some states require that the defendant use the name or likeness for commercial purposes and some require that the plaintiff's likeness already had some meaningful value outside the context of the misappropriation in question. If you're interested in pursuing the case, contact a lawyer with experience in privacy torts in your jurisdiction.
If you aren't publicly registering a trade name you are probably engaged in illegal conduct. Among other things, by doing this, you are effectively hiding yourself from any lawsuits arising from the business that accurately name the defendant. You can have a business mascot or trade name, but you have to disclose that this is what it is and provide a means by which a reasonable person who needs to sue you could properly identify you.