I Love You . . . You Sue Me . . . We’re A Happy Parody

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Barney parodist Stuart Frankel, a doctor with a lot of free time, has filed a declaratory relief action against Lyons Partnership, the creators of the lovable character Barney, the Purple Dinosaur. The action, filed in the Southern District of New York, seeks a declaration that Frankel’s website, Stuart Frankel’s Very Small Webpage does not infringe any protected copyright or trademark related to Barney.

The website portion in question pokes fun at the Barney and Friends television show, claiming that Barney leads a double life and in fact is an evil demon. Sources who watch The Barney Show regularly have confimred that this information is not contained in the actual show (notwithstanding the fact that all sources were under the age of four, we stand by the voracity of these statements).

According to the suit, filed in late August of this year, Plaintiff received several threatening letters from Lyons attorney, demanding he cease operating the site or risk legal action. Notwithstanding Plaintiff’s responses — through his counsel — that Lyons attorney speak directly with counsel and stop sending letters to him, the letters kept coming, in form-letter style, directly to Plaintiff. The letters alleged that Frankel had infringed the BARNEY trademarks and copyrights and threatened to have Frankel’s website taken down as a result.

While trademark law does acknowledge parody as a partial defense, it is not a complete defense. The measure of whether a third party’s use of a trademark is fair will be determined under the same standard as any trademark infringement suit, namely, whether the relevant class of consumers believes that there is any affiliation with or sponsorship by the relevant class of consumers. The content of the web page — much like a “sucks” website — seems to establish that Stuart is not a fan of the cuddly character.

From a copyright perspective, parody constitutes a fair use and a complete defense to copyright infringement. Given that the site is non-commercial, and the images of Barney are limited to two, both of which are probably necessary to establish the parody, the plaintiff may well get his wish, but one thing’s for sure: he won’t be a guest on the “Let’s Have Fun with Manners” episode.

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