The U.S. District Court of New Mexico recently decided a case in which the infringement was obvious and the defendant was absent.
Viacom v. Mark Anthony Baca and Guardian Anti-Bullying Campaign, Inc. concerned the trademark and copyright of the internationally famous Teenage Mutant Ninja Turtles franchise. The defendant was the driving force behind what was billed as a parody of the Teenage Mutant Ninja Turtles, with the self-aware title, “The Ninja Turtles Live Action Parody Show” (“The Show”).
The Show was a low-budget, amateurish production that had caught Viacom’s attention several years before this decision. The defendant, Mark Anthony Baca, evaded service repeatedly. Viacom was forced to go to extraordinary means to serve Baca, including putting notices in three daily newspapers. Satisfied with Viacom’s efforts, the judge allowed the trial to proceed without Baca’s participation.
Viacom showed that The Show’s characters had the same names and personality traits as Viacom’s characters, and were infringing on Viacom’s trademark and copyright. The court agreed, adding that “The Show is not a parody and provides no meaningful commentary upon or criticism of the Ninja Turtles; nor are the Ninja Turtle characters portrayed with irony or self-awareness to indicate a parodic element to the Show.”
The professed anti-bullying component of the show could have been transformative, but fell short. The court found that it was a very small part of The Show and therefore inconsequential.
This case has a few takeaways:
- Don’t assume having the word “parody” in your title insulates you against claims of infringement.
- If you are David fighting Goliath without a slingshot, then negotiate with Goliath or defend yourself with some other means.
- Sticking your head in the sand is a terrific way to pay your adversary’s attorney’s fees. In this case, the court didn’t address the amount of fees, but you can be sure that Viacom’s attorneys did not work for free — and that the defendant is on the hook for whatever they charged.
