When Satire Goes Meta
Kerry Howley | October 24, 2005, 6:24pm
The Onion gets a letter from the White House (really):
"It has come to my attention that The Onion is using the presidential seal on its Web site," Grant M. Dixton, associate counsel to the president, wrote to The Onion on Sept. 28. (At the time, Mr. Dixton's office was also helping Mr. Bush find a Supreme Court nominee; days later his boss, Harriet E. Miers, was nominated.)
Citing the United States Code, Mr. Dixton wrote that the seal "is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement." Exceptions may be made, he noted, but The Onion had never applied for such an exception.
The Onion was amused. "I'm surprised the president deems it wise to spend taxpayer money for his lawyer to write letters to The Onion," Scott Dikkers, editor in chief, wrote to Mr. Dixton. He suggested the money be used instead for tax breaks for satirists.
New York Times account here.
Pro Libertate | October 25, 2005, 11:51am | #
Parody is a great example of where intellectual property rights can butt heads with First Amendment speech protections. Focusing strictly on trademark law, my feeling is that the use of a mark in a situation that clearly involves commentary on the underlying product, service, or company
must be a fair use; otherwise, the courts are saying that the Lanham Act trumps the First Amendment. Uh, no. Trademark law has no direct Consitutional authority, being merely statutory in nature. Unfortunately, all of what I'm saying is correct from a way-things-should-be perspective, but from the actual line of cases dealing with trademark (and copyight) parody, things are far from clear.
In fact, even copyight, which is expressly mentioned in the Constitution, should fail when it conflicts too directly with free expression rights. The reason for this is simple--copyright and patent protections are set out as something Congress has the authority to implement, but it is not
required to do so. Congress could (takings issues aside) abolish IP protections altogether tomorrow. However, we're all familiar with the language of the First Amendment, which clearly limits Congressional actions affecting speech.
The use of the presidential seal isn't really a trademark matter, of course, but the restrictions on its use are purely statutory--not Constitutional--and should fail to the extent that they interfere with free expression and don't have some compelling purpose for such interference. By the wording of the statute itself,
The Onion's use is permissible--no reasonable person would think
The Onion was attempting to use the seal to show government endorsement of its product. Quite the contrary!
To make things worse, these kinds of laws, as well as overly restrictive copyright and trademark cases, end up having a fairly serious chilling effect on speech. Try using Mickey Mouse's image to say something bad about Disney.
Reason on Facebook
Reason on Twitter
Reason on YouTube
Reason RSS
