BS and Barney

Bill Schmalfeldt can dish out, but he can’t take it. He whines about being the subject of a parody. Poor Bill. He’s kinda like Barney. When the owners of the rights to the purple dinosaur found out about a parody video that featured a Barney lookalike, they sued. And they lost.

The case is called Lyons Partnership v. Giannoulas, et al., 14 F.Supp.2d 947 (1998). In finding for the defendant the court wrote:

A good-faith intent to parody is not an intent to confuse. Elvis Presley, 141 F.3d at 203. Although plaintiff does not appreciate defendants’ intent, there is no doubt that parody is intended. Defendants’ act is not an effort to confuse consumers, but rather to amuse. Hormel, 73 F.3d at 505. And, the parody does not simply “use the original [Barney] in a humorous fashion.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 597, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (Kennedy, J., concurring). Rather, it targets Barney himself and not just the general style, the genre of art to which he belongs, or society as a whole. Id. Contrary to what plaintiff urges again and again, any other character, such as Mickey Mouse, could not be substituted in defendants’ act to achieve the same effect.

The court also said:

In assessing fair use, courts consider: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. Campbell, 510 U.S. at 577, 114 S.Ct. 1164.

Putting all the factors together, no conclusion can be reached except that defendants have fairly used elements of plaintiff’s copyrighted works.

This was a case of a Barney lookalike appearing in a video and being booed. But Barney took his loss in court like a man.

Bill Schmalfeldt doesn’t seem to handle losing in court as well. One wonders why he would want to sign up for more.