Essay  |  Volume 163

Trademark Law and the Prickly Ambivalence of Post-Parodies

163 U. Pa. L. Rev. Online 11 (2014).

Posted on Aug. 25, 2014

Essay - 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.