Why do you do this to me when I'm supposed to be writing HIPAA policies and procedures? This is so much more fun.
I'm adopting your allowance for a commercial assumption. I'm also assuming that JKR, et al, still has trademark rights in her characters. Then the answer turns on a couple issues:
1. Why are you making Lego!Voldemort do such horrible things? Are you truly parodying him? Are you dressing Lego!Voldemort up in black leather and performing the Lego Musical of Power Achievement and Domination. You're probably OK. I'd call that parody. Are you dressing Lego!Voldemort up in a hot pink boa and spandex unitard and having him kill the Muggles over their bad fashion sense while giggling maniacally? I'd call that satire. Then you're fine, trademark-wise.
2. Let's assume you're dressing Voldemort up in his pink spandex outfit just becaue you like to distribute pictures of Voldemort in pink spandex. (You perv!) The question becomes, can you tarnish Voldemort with bad fashion sense? Is Voldemort even tarnishable? You know, he mercilessly tortures and kills people. Can you tarnish that?
Interestingly, this argument came up in the Spam case, but that case was decided on other grounds. Can you tarnish Spam? *shrug* Probably somehow. I think if some company had coined the term 'spam' for it's irritating e-mails in a cute ad campaign that tells you that they know they're being irritating, but please read their 'spam' anyway, I think I'd argue Spam has been tarnished. (Can't do that now, because the term 'spam' for irritating junk e-mail is not acting as a source-identifier.)
So I'm thinking you can tarnish Voldemort somehow. The question is, is pink spandex and all that it implies about Voldemort's fashion sense enough to tarnish him, assuming there's no parody or satire involved? Sure, I think so. Considering his penchant for black. Of course, given that skin, maybe not. Can you tarnish Voldemort by making Lego!Voldemort pull the heads off all the other Lego HP characters. Nope, he's just like that.
3. And then the truly interesting issue. Let's assume you can't tarnish Voldemort because he just sucks that much. At everything. But you can tarnish Tom Riddle (although certainly not by making him a sex offender and writing a fic about his legal crusades to get the sex offender registration law overturned). Does the fact that you can tarnish Tom mean that Voldemort is also tarnishable? Or that Tom isn't tarnishable? (Is 'tarnishable' even a word?)
I think it depends on whether you can separate the characters. And certainly adults can. But should there be a child specific test, since the HP books are 'children's literature' (leaving aside my pet peeve argument that says they aren't)? Is there a special test for whether children can differentiate?
And while we're at it, is there a separate test for tarnishment of children's products? Would children have to see it as tarnishment? Would we have to give Lego!Voldemort cooties instead of pink spandex?
I think there's a case that talks about trademarks and children's products, but I can't remember what it was and I think it was decided on different grounds.
And I think my brain just blew up. *hugs trademark law and its potential for outrageous legal discussions*
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branchandroot
(no subject)
Date: 2003-02-05 01:38 pm (UTC)I'm adopting your allowance for a commercial assumption. I'm also assuming that JKR, et al, still has trademark rights in her characters. Then the answer turns on a couple issues:
1. Why are you making Lego!Voldemort do such horrible things? Are you truly parodying him? Are you dressing Lego!Voldemort up in black leather and performing the Lego Musical of Power Achievement and Domination. You're probably OK. I'd call that parody. Are you dressing Lego!Voldemort up in a hot pink boa and spandex unitard and having him kill the Muggles over their bad fashion sense while giggling maniacally? I'd call that satire. Then you're fine, trademark-wise.
2. Let's assume you're dressing Voldemort up in his pink spandex outfit just becaue you like to distribute pictures of Voldemort in pink spandex. (You perv!) The question becomes, can you tarnish Voldemort with bad fashion sense? Is Voldemort even tarnishable? You know, he mercilessly tortures and kills people. Can you tarnish that?
Interestingly, this argument came up in the Spam case, but that case was decided on other grounds. Can you tarnish Spam? *shrug* Probably somehow. I think if some company had coined the term 'spam' for it's irritating e-mails in a cute ad campaign that tells you that they know they're being irritating, but please read their 'spam' anyway, I think I'd argue Spam has been tarnished. (Can't do that now, because the term 'spam' for irritating junk e-mail is not acting as a source-identifier.)
So I'm thinking you can tarnish Voldemort somehow. The question is, is pink spandex and all that it implies about Voldemort's fashion sense enough to tarnish him, assuming there's no parody or satire involved? Sure, I think so. Considering his penchant for black. Of course, given that skin, maybe not. Can you tarnish Voldemort by making Lego!Voldemort pull the heads off all the other Lego HP characters. Nope, he's just like that.
3. And then the truly interesting issue. Let's assume you can't tarnish Voldemort because he just sucks that much. At everything. But you can tarnish Tom Riddle (although certainly not by making him a sex offender and writing a fic about his legal crusades to get the sex offender registration law overturned). Does the fact that you can tarnish Tom mean that Voldemort is also tarnishable? Or that Tom isn't tarnishable? (Is 'tarnishable' even a word?)
I think it depends on whether you can separate the characters. And certainly adults can. But should there be a child specific test, since the HP books are 'children's literature' (leaving aside my pet peeve argument that says they aren't)? Is there a special test for whether children can differentiate?
And while we're at it, is there a separate test for tarnishment of children's products? Would children have to see it as tarnishment? Would we have to give Lego!Voldemort cooties instead of pink spandex?
I think there's a case that talks about trademarks and children's products, but I can't remember what it was and I think it was decided on different grounds.
And I think my brain just blew up. *hugs trademark law and its potential for outrageous legal discussions*