Can &quot;Dumb Starbucks&quot; be legally considered Fair Use as satire or parody? About a year ago, a new, familiar-looking coffee shop opened in LA. Their reasoning for this was, basically, that it's making fun of the popular coffeehouse chain and is thus fair use: Naturally, it attracted a lot of attention and was later revealed that it was really a publicity stunt created by a comedian, but he still made a statement that "as long as we're making fun of Starbucks, we're allowed to use their corporate identity" (as seen here). Had Starbucks sued for trademark infringement (which they probably planned to do, but the thing was actually closed for operating without a valid public health permit), would the whole parody as fair use thing hold in court (or at least have some relevance in the case)?
This is likely not fair use. At first blush it appeared similar to things one might see in The Onion (parody print and online newspaper) or other parody publications or shows (SNL, Key and Peele, etc.). In this case, the context would have likely been deemed transformative. However, since they are selling coffee called "Dumb Starbucks" while using their trademark, they would be be found liable if sued. You can parody a trademark brand, so long as the work is transformative such that the use of the brand goes from selling coffee to making a commentary in which the brand itself is relevant. Amendment I don't think this would pass the test as a parody/commentary. Originally, I failed to notice that they are actually selling coffee. This takes it out of fair use and they would almost certainly lose if sued. If they never sold the coffee, but just had it open as a performance art (like I had originally read this) giving the coffee away to complete the parody, I think they'd be fine. However, they are literally using the Starbucks logo, and selling the same product. This is clearly an infringement of their copyright and not fair use. Sorry for the confusion.
I know of no cause of action related to &quot;misrepresentation of intellectual property&quot; (I believe it may be a phrase used colloquially in the context of academic integrity). If such a cause of action exists, I'll leave it to another answer to discuss. This answer approaches your question through the lens of copyright infringement and moral rights. A reproduction is an infringement if it substantially reproduces the original. Short quotes, properly attributed, will often be fair use, even if exactly reproduced. If an exact reproduction is not an infringement (e.g. because it copied too short a phrase) or if it is fair use, then a slightly altered reproduction a fortiori would also not be an infringement or would be fair use. In jurisdictions that recognize moral rights, there may be circumstances where an alteration, even to spelling, would be a violation of an author's moral rights. But to make out a violation of an author's moral rights based only on a spelling alteration, the spelling would have to be critical to the integrity of the work (e.g. perhaps the choice of dialect) and the alteration would have to be prejudicial to the author's honour or reputation.
The Quora statement that the word &quot;facebook&quot; cannot be used in a domain name without permission is incorrect, or at least too broad. If a site or app is intended to work with Facebook, it may say so. However it may not use the word &quot;Facebook&quot; whch is trademark, in such a way as to suggest that it is an official Facebook product, or that it is endorsed, authorized, or sponsored by the makers of Facebook, or to cause confusion with the original Facebook. Whether a domain name containing &quot;facebook&quot; does that depends on the details. There are multiple precedents for criticism sites. A domain such as &quot;facebooksucks.com&quot; would not be trademark infringement, and there is caselaw to support this. But that is not what might be wanted here. Perhaps &quot;unofficialfacebookhelper.com&quot; would suffice. But to return to the question asked, use of a word in the hypertext metadata in the &quot;Head&quot; element is a reasonable way of indicating that the site is to be used in connection with Facebook, but there would need to be some additional notice or disclaimer making it very clear to any user that the site is in no way affiliated, endorsed, authorized, or sponsored by the makers of Facebook. The use of a trademark to identify another product with which a given product works is known as nominative use. The law specifically allows it, providing it is not done in such a way as to cause confusion, or to falsely suggest sponsorship, approval, or some relationship that does not exist. However, large corporate trademark owners are known to claim more rights than the law allows them. Such owners may try to suppress nominative use that they hae not approved, although they could not win a trademark lawsuit over such use. US Law 15 U.S. Code § 1125 (c)(3) provides the relevant part: The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection: (A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person’s own goods or services
Fair use is a four-factor test. Whether the use is commercial is part of just one of the four factors. Fair use is determined on a case by case basis, and it would be rather silly to assume that everything a user could post would be covered by fair use. Rather than just rely on the possibility of fair use, you may want to utilize the DMCA protections. Doing so can protect you from copyright liability for the user-generated content. You will have to register a DMCA agent, and expeditiously respond to takedown notices and counternotices.
A slogan such as &quot;The Stripe of Bitcoin&quot; might well be taken to indicate that the seller of a product or service is trading on the good reputation associates with the mark &quot;stripe&quot;. If so, that would probably be a form of trademark infringement, assuming thst &quot;Stripe&quot; is protected as a trademark, unless the permission of the holder of the trademark &quot;Stripe&quot; was obtained. Payment processing and cryptocurrency handling are sufficiently closely related that customer confusion is possible. Note that competitive use is generally permitted. One can, for example market a soft drink with the tag &quot;The cola that's better than Coke&quot; without permission from Coca-cola (which i doubt anyone would ever get). This is because when a marketer says &quot;X is better than Y&quot; no one reasonably thinks X is sponsored or approved by Y, nor will anyone be lead by this tag into thinking that X and Y are the same. Other forms of nominative use are also allowed without permission from the trademark holder. For example, a computer component might have been advertised as: &quot;compatible with Intel Pentium&quot;, as this is just using a trademark to name a related product, and does not imply affiliation or sponsorship. But a tag such as &quot;The Rolls-Royce of pencils&quot; might be ruled to be infringing, even though Rolls does not, as far as I know, make pencils. Note that the details of trademark law vary significantly from one country to another. Note further that trademarks protected in one country may not be protected in another. The question does not specify any jurisdiction, so no answer can refer to the particular country that the asker may have in mind.
It would probably not be defamation unless it was obvious that it was somehow a very direct metaphor for a real situation. You must, at a minimum, be implying something about reality for something to be defamatory. This would be quite a stretch. You might, however, be liable for commercial appropriation of someone's identity and owe them compensation in much the same way that you have to pay a model damages if you use model's picture for a commercial purpose. The appropriation need not be limited to the physical aspects of someone's appearance and might include also, for example, distinctive use of language or aspects of personal history and life.
The claim seems novel, so I looked at several sources, including several recent cases where fair use has been upheld. Rozier In Easter Unlimited Inc v. Rozier, 18-CV-06637 (KAM) (E.D.N.Y. Sep. 27, 2021) the defendant arranged for creation of a cartoon image of himself wearing the copyrighted mask used in the movie Scream. This was found to be fair use, largely on the ground of the transformative nature of the use changing the purpose from evoking horror to a humorous reference to a horrifying movie. Rozier had originally considered using a representation of the hockey mask work by the character Jason in the Friday the 13th series of films. “Rozier and his management team decided that the clothing line would feature the name “Scary Terry, ” as well as a cartoon drawing of Rozier accompanied by a mask associated with a serial killer from popular horror.” Easter Unlimited, Inc. v. Rozier, 18-CV-06637 (KAM), 42 (E.D.N.Y. Sep. 27, 2021) at page 42 It would seem that the Jason mask would have satisfied the purpose as well as the &quot;Scream&quot; mask. Nothing in the fair use analysis (section C of the opinion, starting at page 31) refereed to a need (to establish fair use) for the work appropriated to serve a legitimate purpose which could not be served without it or any similar concept. This simply was not part of the fair use analysis. Further the opinion states, at page 17: “Copyright infringement is a strict liability offense, meaning “intent or knowledge is not an element of infringement.” Fitzgerald Publ'g. Co. v. Baylor Publ'g. Co., 807 F.2d 1110, 1113 (2d Cir. 1986). ” Easter Unlimited, Inc. v. Rozier, 18-CV-06637 (KAM), 17 (E.D.N.Y. Sep. 27, 2021) This seems to dispose of the de minims exception suggested by supercat's comments cited in the question. McGucken In McGucken v. Pub Ocean Ltd. 2:20-cv-01923-RGK-AS, 2021 U.S. Dist. LEXIS 153361 (C.D. Cal. July 27, 2021) The district court found fair use. The Copyright office's fair use index summarized the case, writing: Key Facts: Plaintiff Elliot McGucken photographs landscapes and seascapes, which he posts to his public Instagram account. Twelve of McGucken’s Instagram posts depict photographs he took of an ephemeral lake in Death Valley (the “Photographs”). On April 15, 2019, Defendant Pub Ocean Limited (“Pub Ocean”) published McGucken’s Photographs to five websites owned by Pub Ocean as part of an article written by a freelance writer titled “A Massive Lake Has Just Materialized in the Middle of One of the Hottest Places on Earth.” The article contained ten of the Photographs, with credit to McGucken and a link to his Instagram page, as well as several photos that were not McGucken’s and commentary on the conditions in Death Valley, the Sahara, and other natural phenomenon. McGucken brought an action for copyright infringement and moved for summary judgment, asserting Pub Ocean’s use did not constitute fair use. Issue: Whether including photographs posted on social media in a news article to illustrate the subject of the photograph is fair use when accompanied by commentary. Holding: The court concluded that Pub Ocean’s use of McGucken’s Photographs was fair use. The first factor, the purpose and character of the use, favored fair use because Pub Ocean’s use of the Photographs was transformative because the article included discussion of facts and commentary that provided context for the Photographs and included other photographs as well. The transformative nature of the use reduced the importance of the commercial purpose factor. The court held the second factor, the nature of the work, disfavored fair use as McGucken’s works, although previously published, are highly creative. The court found the third factor, the amount and substantiality of the work used, favored fair use. The court concluded that, despite displaying the “heart” of the Photographs, the article expressed ideas “beyond what Plaintiff expressed in his photographs,” rendering the amount of McGucken’s copyrighted images “insubstantial in context.” The fourth factor, the effect of the use upon the potential market for or value of the work, favored fair use because Pub Ocean’s transformative use “mut[ed] the degree of market substitution.” The court also noted that McGucken licensed the Photographs to other publications after Pub Ocean published its article, which indicated that Pub Ocean’s use did not usurp or destroy the market for the Photographs. Note that other photos of the same temporary lake would have fulfilled the legitimate purpose of news reporting, and there seems to have been no allegation that these particular images were essential to this purpose, but the court still found fair use. DMCA Subpoena to YouTube In In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.) United States District Court for the Southern District of New York January 18, 2022, Decided; January 18, 2022, Filed 7:18-mc-00268 (NSR) the district court considered a motion to quash a subpoena because a claimed infringement was alleged by the defendant to be fair use. In this case a person using a pseudonym created and posted to YouTube stop-action videos of characters represented by Lego constructions watching and reacting to substantial excerpts from a video published by the Watchtower Bible Society (publishing arm of the Jehovah's Witnesses). Watchtower claimed that this was copyright infringement, and obtained a subpoena to force YouTube to reveal the identity of the maker of the video. The unnamed maker sought to cancel (quash) the subpoena, claiming that the video made fair use of the videos published by Watchtower, so no infringement action could possibly succeed, and that Watchtower had no legitimate reason to obtain his identity, and wished only to harass and discredit him for having questioned its teachings. (The allegedly infringing video expresses disagreement with, and attempts to ridicule, the teachings expressed in the Watchtower video.) The district court found the allegedly infringing video to be fair use, and duly quashed the subpoena. Note that the unnamed maker could have used any of several other videos by Watchtower for a similar purpose, there was apparently noting unique to the particular video that was appropriated in part which was essential to the maker's use, nor did the court so much as mention any such unique aspect essential to the maker's purpose as being important to a finding of fair use. Excessive Use As this answer bv Accumulation correctly points out, when a defendant uses more of the sourc work than is required to fulfill the purpose of the use, that weighs against a finding of fair use. But this is not an absolute bar to fair use (or anything close to one), as the rule proposed by user supercat would be. In several cases I have read court opinions that say, in effect &quot;The defendant used more of the source work than was needed, adn that weighs against fair use, but the degree of transformativeness present outweighs that, so we find this to be a fair use.&quot; Thwe rule suggested by suoercat would not allow such findings. Excessive use leans against fair use, but is in no way dispositive. Conclusion I searched for any court case or law review paper which mentioned any such doctrine, and read through the fair use analysis in several recent court decisions in which fair use was found. I did not find any mention of the idea that fair use requires that the source work must be essential to the alleged infringer's legitimate purposes, and that those purposes could not be fulfilled by some other work, including perhaps a work available under a permissive license or in the public domain. I conclude that there is not, and never has been, any such requirement in US copyright law to successfully assert fair use.
It depends on the nature of the quote. Quotes from Buddha, Aristotle and Lincoln are out of copyright. Otherwise, the two basic questions are: who put that quote in fixed form, and is copying it "fair use"? If for example you happen to be at a political rally where a politician makes a noteworthy extemporaneous quote, you could be the copyright holder, because copyright law protects the person who first puts the work into fixed form. (If he's reading from prepared text, the speech writer or his employer would hold copyright). You can also quote small bits from any source, such as "Don't think about your errors or failures; otherwise, you'll never do a thing". It would not be "fair use" to chop up a novel into a sequence of 2-3 sentence quotes. This assumes that you manually assemble the quotes from legal sources, such as a print copy of "The Martian". Whether or not you can legally pull the data from an online source depends on the terms of service for that site. That lets out brainyquote as a source, so check the TOS for whatever source you get the material from.