Abstract

     In Mattel, Inc. v. MCA Records, Inc. (Mattel), the Ninth Circuit recently held that a song based on the Barbie doll was a parody and therefore qualified for a fair use defense against a claim of trademark infringement. A few years ago, however, this same circuit in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc. (Seuss) held that a book using the writing style of Dr. Seuss, as well as a character fashioned after the Cat in The Cat in the Hat, was a satire and therefore did not qualify for a fair use defense against claims of trademark and copyright infringement. A contrast of these two cases reveals the inadequacy of the standard adopted by the Ninth Circuit to determine when parody should be permitted as a defense to copyright or trademark infringement.
     This comment will examine the standard utilized by the Ninth Circuit both in relation to other relevant decisions and within the framework of established literary scholarship on parody. Part II examines the statutory basis of the parody defense, the Supreme Court’s decision on the subject, the subsequent Ninth Circuit decisions in Seuss and Mattel, and several other recent federal court decisions. Part III discusses literary scholarship on the definition of parody. Part IV examines the standard currently in use in the Ninth Circuit in relation to all the cases discussed in Part II. Part V concludes by proposing the use of a more expansive definition of parody to allow a broader range of artistic expression to qualify for the parody defense.