 |
"Evel Kanyevel"
Hiphop star Kanye West includes enough elements of parody in the video for his hit song “Touch the Sky” to support a solid defense against a trademark infringement suit filed by stunt daredevil Evel Knievel.
In the $1 million video, which co-stars Pamela Anderson, West plays “Evel Kanyevel,” a stuntman dressed in a Knievel-esque white jumpsuit who vaults a canyon in a rocket. Knievel famously tried to jump the Snake River Canyon on his “skycycle” in 1974.
West's imitation is not a form of flattery to Knievel, who claims the video infringes on his trademarked name, his likeness and the trade dress of his jumpsuit and tarnishes his reputation with its “vulgar, sexual, and racially-charged” images and language.
The complaint, filed Dec. 8 in Tampa federal court, seeks injunctive relief and unspecified damages for violation of trademark and publicity rights. "That video that Kanye West put out is the most worthless piece of crap I've ever seen in my life, and he uses my image to catapult himself on the public," Knievel, 68, fumed.
Parody is not the affirmative "fair use" defense in trademark cases that it is in copyright cases. Courts may consider it as one element in the analysis of whether the alleged trademark infringement is likely to create confusion in the marketplace.
A consumer “would not be confused but amused” by a true parody, the 7th U.S. Circuit Court of Appeals ruled in Nike v. "Just Did It" Enterprises, 6 F.3d 1225 (1993).
Knievel alleges West used his mark “with the intent of causing confusion, mistake and deception and to reap the benefit of Evel Knievel's good will,” and his attorney, Richard E. Fee, said a claim that the video is a parody won't fly because
A parody is something that's characterized by comedic content and that video is not a comedy. It's a music video used to sell Mr. West's musical works.
But in the seminal case of Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the U.S. Supreme Court accepted a rap song as parody which “reasonably could be perceived as commenting on the original or criticizing it, to some degree.”
West's video is a work of commentary which, taking its cue from the song's sampling of the 1971 hit “Move On Up,” pokes fun at such '70s cultural phenomena as blaxploitation movies, ABC's Wide World of Sports -- and Evel Knievel stunts.
At one point, two Afro-haired black women berate Kanyevel for having a white wife (played by Anderson) –- perhaps a wry comment on West's rumored relationship with the “Baywatch” star.
Knievel may have missed such subtleties but, to paraphrase Nike, his trademark protection does not amount to a right not to be ridiculed.
By Matthew Heller
12/13/06
Distinguishing between the tangible and intangible qualities of a book, a New York judge has decided that products liability law does not apply to the case of a businessman who blames the Atkins diet for his heart problems.
The unusual products case relied heavily on quotes from "Dr. Atkins' New Diet Revolution." The book and related food products, Jody Gorran alleged, are defective in that they “put at least a substantial minority of persons ... at increased risk of cardiovascular disease and other illnesses.”
Gorran sued the estate of the late Dr. Robert Atkins and the publisher of the book, claiming he developed serious heart problems as a result of following the popular, low-carb diet for two years. He had to undergo an angioplasty to repair a clogged artery.
But in dismissing the case, U.S. District Judge Denny Chin noted that products liability law “focuses on the 'tangible world.'” While a defect in “a book's tangible qualities -– the cover, pages, and binding –- could potentially give rise” to a claim, he said in his opinion,
The intangible qualities of a book, however – the ideas and expressions – are not products for purposes of products liability law.
The decision was consistent with the federal appeals court precedent of Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (1991). A Pennsylvania judge also dismissed claims against the publisher of "The Last Chance Diet" in Smith v. Linn, 563 A.2d (1988).
“Imposing liability for physical injuries caused by the ideas contained in a book would inhibit those who wish to share thoughts and theories,' for no author would write on a topic that could potentially result in physical injury to the reader,” Chin wrote.
Gorran originally filed his complaint in Florida state court, but the case was transferred to the federal courts after Atkins' publisher sought bankruptcy protection. A claim for negligent misrepresentation also failed, with Chin finding that the diet book's content “is noncommercial speech entitled to full First Amendment protection.”
The judge could not resist an aside about the Atkins weight-loss formula:
The Court notes that it has had success with its own, much simpler diet, which can be described in four words: “Run more, eat less.”
By Matthew Heller
12/13/06
