Tuesday, June 24, 2008

consumer confusion in the under-3 set?

An anecdote, for whatever it’s worth: when my 33-month-old son saw me take Goodnight Bush out of the mailer, he said, “That’s my book!” When I explained that it wasn’t Goodnight Moon and we compared the two side-by-side, he said, “They match!” Then he insisted that I read him Goodnight Bush, though he soon lost interest. I don’t think his reactions are all that significant in terms of consumer confusion, given that a kid familiar with Goodnight Moon is unlikely to (a) be the purchasing agent or (b) be in the market for a second copy.

(Keep an eye on the Georgetown IP Teaching Resources RSS feed for a couple of scans for comparison purposes. Also, the news & reviews section on the official site, linked above, appears carefully culled for litigation purposes, focusing on the repetition of “political” and “parody.” Here’s hoping it works!)

I found some of the “goodnights” bitterly funny—my favorite was the blank page “goodnight air” changed to “goodnight allies.” The Twin Towers are alphabet blocks; Jesus rides a toy dinosaur for “goodnight evolution.” All in all, it’s more satire than parody, to the extent that one can tell the difference, though it does highlight the surrealism of the original Goodnight Moon as well.


Robb Shecter, Student & Managing Editor of Animal Law Review said...

That's really interesting. Legally, does it matter what is the object of the parody or satire? In other words, one could say here, that Goodnight Moon isn't being satirized so much as Bush / Republicans.

Would that be at all relevant? Would it be a valid argument that the authors of Goodnight Bush are using Goodnight Moon as simply a vehicle for the true object of satire?

RT said...

The Supreme Court has said that satire needs more justification than parody, on the theory that parody by definition requires the original as its target, while satire could choose from various existing works to make its satirical point. I think this is mistaken, but it's in the cases. In any event, neither parodies nor satires are likely to have much effect on the market for the original, which is a key fair use factor, so satire can definitely be fair use.

Robb Shecter, Student & Managing Editor of Animal Law Review said...

Ah hah. So maybe alternatively, under some kind of tort theory having to do with harm to the brand / IP. (?)