My opposition to the ever-expanding trademark and copyright laws is well known. (For a prior column, click here). Common phrases and symbols are being snatched up as Congress and the Obama Administration continue to yield to every demand for higher levels of penalties and prosecutions. Now we have a personal injury firm — Geoff McDonald & Associates — that has knuckled under to a threat from GEICO insurance because it used an obvious (and stated) parody in a commercial. This is an office filled with attorneys and yet they pulled the commercial because of an obvious joke. If they cannot stand up to the copyright and trademark hawks, consider the position of average citizens faced with threatening letters. Even other insurance companies have folded under pressure from GEICO in parody commercials. It is not clear if GEICO will now move against zoos and elementary schools who try to feature geckos. Before I am sued by the lawyers at GEICO, the picture to the left is a body part of a common gecko found in the wild. He has no connection to the insurance company and is not meant to mock it in any way.
The commercial below starts with an express statement that “what follows is a small parody of big insurance.” Clearly, the law firm anticipated the issue, but they withdrew the commercial. Moreover, the firm’s general counsel, Jimmy Bewley, will not discuss the “settlement” with GEICO.
In the commercial, the gecko enters the law firm with a bag over his head regarding a car accident and explains the bag by saying “Let’s just say the people I work for would hate to see me here.” The law firm also parodied the “Mayhem” character used by Allstate Insurance. The firm admits that “pretty much the exact same thing happened. We made a settlement with them, too.”
Why? This is parody and should an exercise of free speech. Indeed, the free speech issue surrounding the power of insurance companies is combined in this case with an issue of legal advocacy. If anything, the law firm has undermined those principles by yielding to these threats. The problem is that the Congress and the courts have royally fouled up this area. The greatest example of the lunacy is found in White v. Samsung, a perfectly ludicrous ruling where Vanna White successfully sued over the use of a robot with a blond wig turning cards as the appropriation of her name or likeness. The estate of Humphrey Bogart sued for over a couch simply named Bogart. California-retailer Plummers settled the lawsuit last year.
Part of the problem is that we have a large number of law firms on retainer to bring these actions and artists and companies that do little to limit them. The greatest problem is the success of this lobby in getting Congress and the Obama Administration to push through virtually any legislation that they demand — criminalizing violations, approving warrantless searches, and allowing for obscene awards.
There is no reason why a law firm cannot parody insurance companies in my view. However, they have to be willing to litigate the matter and the principle does not appear as compelling as the parody for this law firm.
Source: ABA Journal