Trademark Law and the Prickly Ambivalence of Post-Parodies
This Essay examines what I call “post-parodies” in apparel. This emerging genre of do-it-yourself fashion is characterized by the appropriation and modification of third-party trademarks—not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex forms of expression. I examine the cultural circumstances and psychological factors giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is grounded in ambivalence.
Unfortunately, current doctrine governing trademark “parodies” cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a cramped view of “worthy” expression. I argue that trademark law—at least, if it hopes to determine post-parodies’ lawfulness in a meaningful way—is asking the wrong questions, and that existing “parody” doctrine should be supplanted by a more thoughtful and nuanced framework.
Previous EssayDistinguishing Immigration Violations from Criminal Violations: A Discussion Raised by Justice Sonia Sotomayor
Brian L. Owsley