What are the parameters for spoofing - parodying other advertiser's campaigns?
(i.e. "Where's the Beef?" or "Got Milk?")

We are an advertising agency developing a campaign for a company that
is interested is spoofing successful advertising campaigns of other
companies: however, we are not certain as to the legal use of such
advertising.

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Request for Question Clarification by pafalafa-ga on 24 May 2005 11:23 PDT

mbws-ga,

There's no real hard and fast guidelines I can offer you (and frankly,
I doubt anyone could!).  Trademarks, copyright protection and the like
is a very slippery area of law, and Google Answers (see disclaimer,
below) is not a professional legal advice service.

That said, the use of common words like "Got Milk?" or "Reliable Car
Repair" generally receive far less protection under trademark law than
product-specific terms Coca-Cola, or Buick (so-called weak vs strong
trademarks).

Parody also receives an extra layer of protection, but this applies
more to 'artistic' parody than it does for advertising.

And as they say in the business:  Any publicity is good publicity!  If
your client's ad gets challenged as infringement, one effect of the
challenge is a lot of free advertising, of sorts.

If you'd like, I can steer you to some online resources that offer
some general overviews of weak/strong trademarks, parody, and other
areas of intelllectual property law.  Let me know if that would meet
your needs.

Bottom line, though, is you'll probably need to consult with an
intellectual property lawyer for a full run-down of the situation.

Let me know what you think,

pafalafa-ga

If you really are an ad agency, you would have legal staff on retainer
to answer this question for you.

With parody or satire, one does have broad discretion in just how far
you can go. Look at <i>South Park</i>.

I'm not so sure that they would have legal staff on retainer for this
sort of thing - it is quite an esoteric question.

Personally I would gather together a selection of 'past parodies' and
see how far they went.

The most famous is the Duracell Bunny ad, also in the UK there was an
Old Spice spoof that was really an ad for a beer (Carling Black Label
IIRC)

There is a big difference between a benign parody and 'knocking copy'
- something worth considering

Not so esoteric a question.  It's pretty common in both advertising
and multimedia law.  Also, the answer can differ significantly between
the US and foreign countries.

The primary issues in parody under US law are whether: (1) the parody
is sufficiently linked to the original to put someone familiar with
the original on notice that it is referencing or playing on the
original -- does it capture some flavor or content from the original,
(2) it is also sufficiently distinctive so that it is clearly a parody
and not just passing off or confusingly similar as to its source
(i.e., it is clearly not done or sponsored by the author of the
original), and (3) it improperly, falsely, or unjustifiably disparages
the original (i.e., product, company).

Parody is a defense to claims of infringement, much like "fair use,"
and must be viewed as such.  So one factor when judging how far to go
is whether the original work and the parody are for commercial
purposes, social commentary, etc.    Another factor is whether there
are multiple grounds for the original author to challenge the parody
(copyright, trademark, trade dress, false advertising, unfair
competition, droit noir, etc.)  The assumption being the parody will
offend someone, or adversely impact the original author's financial or
artistic interests.

It's also judged on a case by case basis, so hire an attorney
competiant to advise you on the particular situation after reviewing
the original and the proposed parody.