Monthly Archives: October 2012

“What, Me Worry About ©?” Mad-Made Law

“All around me are familiar faces.  Worn out places, worn out faces . . . no expression, no expression.”  “Mad World,” Gary Jules

I heard the new today, oh boy.  Mad Magazine,  that bastion of irreverent, sometimes imbecilic humor, turns 60 this year.  I hadn’t realized Mad was still being published, much less that it’s lasted this long.  Alfred E. Newman, pictured above, hasn’t looked a day older than, 16 since I used to read Mad religiously in the ’60s.

As I came of age, I moved on to other sources for literary laughs–National Lampoon, Spy, and, today, The Onion. But I never forgot Mad.  It’s iconic features like  the Cold-War classic–Spy vs. Spy, the spot-on TV and movie parodies, Dave Berg’s The Lighter Side, and all the rest remain comedy touchstones that influenced generations of humorists and infused them with the Mad sensibility for the absurd, the ironic, and, yes, the insightful.  The magazine taught generations of readers to filter the “truth” through humor’s unflinching lens.  Could Jon Stewart, Stephen Colbert, and The Simpson’s have wielded their political, social, and cultural rapiers if there had been no Mad?   No way.

Mad’s contribution to our warped world view is  undeniable.  Less remembered is Mad’s enduring contribution to the law.  As hard as it may be to picture Alfred E. in a three-piece pinstripe and tassel loafers, the irrepressible nudnik had a star-turn in the courtroom that shaped copyright law and paved the way for tuneful satirists like Weird Al Yankovik.

The year was 1964, and Beatlemania had gripped the land.  Yet Mad  was in a nostalgic mood, running parodies of classic songs.  The piece provided  Mad-ingly twisted lyrics and instructed readers to sing them “to the tune of” the targeted song.   In this way, Mad skewered 25 songs.   Among them was a parody of Irving Berlin’s “A Pretty Girl Is Like A Melody,”  which Mad retitled “Louella Schwartz Describes Her Malady.”

Readers thought this and the other song parodies were a scream.  Not Irving. Althouth he was known for such comedy gems as “Snookie Ookems,” Berlin, apparently, had no sense of humor when it came to others poking fun at his expense.  So he unleashed his lawyers to go after Mad, crying foul and claiming irreparable harm.  Fortunately for life, liberty, and the pursuit of laughs, the Second Circuit Court of Appeals disagreed, resulting in a ruling that went down in legal history as “the Mad exception.”  The Court wrote:

 the plaintiffs have not asserted that the music-buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants. Neither is there a claim that defendants’ parodies might satisfy or even partially fulfill the demand for plaintiffs’ originals; quite soundly, it is not suggested that ‘Louella Schwartz Describes Her Malady’ might be an acceptable substitute for a potential patron of ‘A Pretty Girl Is Like a Melody.’

Stripping away the legalese, the Court said that Mad’s creative expression trumped Berlin’s rights.  While copyright is important, even more important is free speech.  After all, a society that can’t laugh at itself is doomed, if not to fail, then to bore itself into oblivion.  And we have Mad to thank for reminding us of that for the last 60 years.  Hopefully, Alfred E. Newman will continue to shine his gap-toothed countenance on us for generations to come.

QUOTE OF THE DAY: “The U.N. is a place where governments opposed to free speech demand to be heard!”  Alfred E. Newman


Filed under copyright, IP, Uncategorized

“Eat Mor” War: Chik-Fil-A Bites Off Too Much Again?

“I’ve been chasing ghosts and I don’t like it. I wish someone would show me where to draw the line.”  John Cale

Chik-Fil-A, the fast-food poultry palace with a Baptist bent, earned public ire when one of its executives came out against same-sex marriage, telling a Christian news organization that  Chick-Fil-A supported “the biblical definition of the family unit.”.  Boycotts ensued, but not lawsuits.

But the “Chik” is no stranger to public controversy or to legal proceedings, especially when it comes to trademarks.  The company has aggressively enforced its federal registration for the slogan “Eat Mor Chicken.”  It even claims that the slogan is so famous that no one else should be able to use the expression “Eat More,” regardless of the product or cause.

Until recently, Chik-Fil-A’s fight to rule the “Eat Mor/More” roost was largely a success, with the company pecking away at one alleged infringer after another.

That is until it ran into Bo Muller-Moore and his “Eat More Kale” t-shirt business.  Muller-Moore lives in Vermont and  makes shirts emblazoned with crisp messages or simple declarations such as “Cheese.”  When a local farmer suggested the slogan “Eat More Kale,”  Muller-Moore complied, and sales blossomed.  So much so that he applied to register the slogan with the United States Patent and Trademark Office.

That’s when Chik-Fil-A entered the picture.  It’s lawyers stepped in to protest, claiming that Muller-Moore’s mark would confuse the public and damage Chik-Fil-A and its “Eat Mor” mark.

Muller-Moore, however, is no chicken.  Instead of wilting under legal pressure, the Eat More Kale man has mounted a counter-offensive.  Battling a fast-food corporate giant takes more than chicken feed.  So Muller-Moore  started a campaign on the public-fundraising site “Kickstarter,” which usually is the province of musicians, filmmakers, and artists seeking backers for their next record, film or project.  Using the site to bankroll a lawsuit may be a new growth industry for Kickstarter.   With his story propelled by the Internet, Muller-Moore has already topped his funding goal of $75,000, allowing him to go toe to toe with Chik-Fil-A.

Some may call Chik-Fil-A a trademark bully.  Others may see the purveyor of crispy chicken sandwiches as taking necessary steps to protect a valuable trademark asset.  But whatever your take on the situation, one thing is clear–trademark owners–even well-heeled ones–can no longer count on mom and pop rolling over at the first whiff of legal trouble.  The playing field may not exactly be level, but the Internet and sites like Kickstarter have now redrawn the boundaries.

QUOTE OF THE DAY:  “There’s no reason to be the richest man in the cemetery. You  can’t do any business from there.” Colonel Sanders


1 Comment

Filed under Uncategorized