I recently had the pleasure of representing Dan McCall again — author of such wicked parodies as NSA – the Only Part of Government That Actually Listens (we got to sue the NSA for a declaratory judgment of noninfringement); Ready for Oligarchy (over which we came with hours of filing suit against Hillary Clinton’s exploratory committee); and Bernie Is My Comrade (Sanders’ committee had the smarts to retract quickly). Last week, I sent a response to a demand letter sent on behalf of Trader Joe's from a BigLaw attorney lawyer who, considering his claim to be a "seasoned intellectual property litigator," really should have known better than to subject his client to the Streisand Effect.
The demand letter threatens to pursue a claim for trademark infringement, but no Trader Joe’s customers are going to be confused about whether the grocery store company is behind a satirical Tshirt that alters their name to “Traitor Joe,” and as our response notes, the parody constitutes fair use protected by the First Amendment, however distasteful Trader Joe’s likely finds the usage. The demand letter also presents a copyright claim, invoking the DMCA instead of threatening to sue for infringement – it likely invokes the DMCA because, unlike suits for infringement, DMCA takedowns can be issued over unregistered copyrights. But the DMCA is so plainly not implicated here that the claim is even more laughable than the trademark claim.
The NSA (and Department of Homeland Security) had to seek a humiliating settlement after we sued it, and Ready for Hillary sent a retraction letter hours before the deadline we gave it (I had to contact a well-connected friend who warned her political contacts that Clinton's lawyers did not understand what they were getting into). The only real consequence of any of these demand letters is that McCall got to sell more shirts (indeed, many of my friends and family who adore Bernie Sanders were first in line), and more people heard about the parodies than otherwise would have done so. You have to wonder why companies like Trader Joe’s waste their money on such demand letters, and whether the lawyers who write such letters warn their clients of the likely consequences.
The heroic Paul Alan Levy is America's top expert on litigating online free speech cases and is know as the Web Bully’s Worst Enemy. He has represented Dan McCall on numerous occasions concerning free speech, intellectual property, and parody against the federal government, presidential nominees, and others.