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.
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Brian L. Owsley