Prop 8 controversy branches into IP

Intellectual property has become the latest legal battleground in the fight over gay marriage.

The Chronicle's Scavenger blog reported last week that Protect Marriage, a group defending the legality of a 2008 amendment to the California constitution banning same sex marriage, is suing Courage Campaign, a non-profit organization that supports gay and lesbian marriage, for trademark infringement.

Courage Campaign slightly adapted Protect Marriage's logo for use on a website that publishes coverage and commentary about the Federal court case challenging 2008 ballot initiative Proposition 8.

The original logo used restroom sign iconography to depict a man and a woman holding up a banner over some small figures, presumably representing children. Courage Campaign altered the logo so that both of the larger figures were wearing dresses.

Let's have a look at the logos. Here is the original from Protect Marriage:

And here is the adapted logo used for the Courage Campaign's Proposition 8 Trial Tracker:

While the spirit of this dispute clearly goes beyond intellectual property and is thus outside the scope of this blog, the facts illustrate the role that parody plays in determining fair use of protected material.

The Sacremento Bee quoted the ruling of the judge who denied Protect Marriage's motion to stop Courage Campaign's use of the mark:

The judge ruled that Courage Campaign's "use of the mark is protected under the First Amendment, in that the use is relevant to an expressive parody and … is not explicitly misleading."

Although fair use is notoriously hard to define, parody has long been considered a worthy "transformative" use of copyrighted material. Here's how Richard Stim defines parody in Nolo's Getting Permission (via Stanford Copyright and Fair Use Center):

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to "conjure up" the original.

It's about time we had an intellectual property controversy more interesting that someone suing Apple or the RIAA suing someone!