Sunday, November 12, 2006

Are Dogs Funny?

On the classic 1968 album "Cheaps Thrills" (should there be any other kind?), Janis Joplin sings "Whoa, call me mean or call me evil, I've been called much worse things, all things around, yeah, but I'm gonna take good care of Janis, yeah, Honey, ain't no one gonna dog me down." On the greatest blues album ever made, Count Basie and Big Joe Turner's The Bosses, Turner sings this line: "I've Been Your Dog Ever Since I've Been Your Man." In the visual arts, though, dogs have been portrayed more favorably, even as objects of humor. William Wegman has made quite a career out of photographing dogs, many of them quite humorous. So are dogs funny?

One court recently thought so, Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 2006 WL 3182468 (E.D. Va. Nov. 3, 2006), granting summary judgment to Haute Diggity Dog, LLC in a suit brought by Louis Vuitton over HGG's parody of its logo. HGG sells stuffed toys and beds for dogs under names and designs that make fun of the products of other companies, things like Dog Perignon, Sniffany & Co. In this case it was Chewy Vuitton that sent the frogs over the cliff. Vuitton does sell luxury goods for luxury pooches, such as collars and leashes that range from $250 to $1600; presumably the canines cost more.

Vuitton's well-known logo underwent a change in 2002, in a design by Takashi Murakami. HGG used enough to conjure up LV's design, but asserted parody as a defense. That the parody was purely in the marketing of products didn't bother the court at all. The court's discussion is worth reproducing:

This Court must first consider the purpose and character of the use. Commercial use is one factor to be considered in determining fairness, and is not by itself presumptively unfair. Id. at 591. Parody, even when done for the purpose of commercial gain, can be a fair use, as the Supreme Court has stated specifically that it is more likely that “the new work [a parody] will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it.” Id. at 591. In this case, the use of similar marks and name in a line of dog chew toys and beds parodies the high-end fashion status of LVM's products in a market that LVM does not participate-the market for pet toys and beds. This Court finds that the use of similar markings and colors to those copyrighted by LVM for Chewy Vuiton products is a parody.The next element, nature of the copyrighted work (creative) is a less-important factor for a parody case and “not much help” in separating infringers from parodies. Id. at 586. Therefore, this Court will not address nature of the copyrighted work, other than to acknowledge that it is a creative design.This Court will finally consider the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The Supreme Court held that in a parody case, the parody itselfnecessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.Id. at 588.In this case, the name “Chewy Vuiton” is an obvious wordplay on the name Louis Vuitton, and the superimposed C and V on the logo are intended to “conjure up” enough of the Louis Vuitton logo in order to make the object of its wit-a humorous play on Louis Vuitton's high-end image in the form of dog toys-recognizable. The parody is not possible unless the logo and name are similar to those of Plaintiff, and therefore such parody constitutes a fair use in this respect.*11 Finally, this Court considers interference with the potential market for plaintiff's original and derivative works caused by Defendants' actions. First, the market overlap between Plaintiff and Defendants is tenuous. Louis Vuitton's primary market is for high-end women's apparel, not pet toys. As explained supra, Plaintiff does sell some pet items, but not toys or beds, and only in a limited, high-end market. Second, Plaintiff has offered no evidence of interference with potential markets or control of its copyrights. Defendants, on the other hand, have presented deposition testimony and an expert declaration indicating that there has been no effect on LVM's potential markets or control of its copyrights. (Def.'s Mot. Summ. J. Ex. E-F). For the foregoing reasons, summary judgment should be granted for the Defendants.

Plaintiff also lost on its trademark and dilution claims: now that will dog any poodle down!

7 comments:

Dean C. Rowan said...

No doubt about it, Basie and Turner's Pablo recordings are superlative. I have 'em on vinyl, and the sound matches the performance. Try Kansas City Shout for another doozy, with another version of "Cherry Red." Yow. But the best blues ever? If you prefer your blues from the Delta, give a listen to CeDell Davis. Of course, he doesn't sing here about dogs.

William Patry said...

By blues, I should have referred to late night bar blues. I have Kansas City Shout and love it, and then there is the awesome Basie at Newport for the visceral thrill of a big band and for my other favorite, Little Jimmy Rushing.

Dean C. Rowan said...

And just now it occurs to me that the pinnacle of "dog" songs is Iggy's I Wanna Be Your Dog.

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