“When they tried to take me to court, it was like the best Christmas present ever.”
“I really don’t know [why the North Face is trying to sue me]. I don’t see any similarities between the two companies.”
Those are the words from Mizzou student and owner of the now famous parody brand “The South Butt”.
Jimmy Winkelmann [Editor’s Note: Great freaking name! Seriously.] was recently interviewed by KSDK and came off calm, cool (totally rad?), and more than a little innocent as to trademark law. (View the interview after the jump)
Will Jimmy lose this case?
From our research…probably. Here’s what we found pertaining to copyright law and parody logos (Publaw.com):
Since copyright law prohibits the substantial use of a copyrighted work without permission of the copyright owner, and because such permission is highly unlikely when the use is to create a parody, it may be necessary for the parodist to rely on the fair-use defense to forestall any liability for copyright infringement. However, the fair-use defense if successful will only be successful when the newly created work that purports itself to be parody is a valid parody.
Although not every commercial use is presumptively an unfair use, and therefore conclusively determinative against fair use, this criterion emphasizes a preference that fair use will be granted to those works that are created for noncommercial or educational purposes rather than for commercial purposes.
The burden of proving fair use is usually much easier to demonstrate if the new work is for one of the “favored” purposes: criticism, comment, scholarship, research, news reporting or teaching
Winkelmann’s only hope is 2 Live Crew. Yes 2 Live Crew’s case with Roy Orbison about the “parody” song “Pretty Woman”. After going to the Supreme Court, 2 Live Crew’s version that they release and sold, was found to be a parody and thus protected, because they were found to be making a criticism of the original song.
There Jimmy Winkelmann, is your legal safe house. Go there now.
You can get your own South Butt gear, while you can, at thesouthbutt.com
Oh and for the record, we think all of this is freaking hilarious.