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Peppa Pig Memes: Infringement Alert!
If the Chinese people were choosing a symbol for the year of pig, Peppa Pig will probably make her way to the top of the candidate list. Since her first appearance on CCTV in 2015, the lovely British piglet with a head somehow resembling a hairdryer, has earned her incredible popularity among Chinese kids as well as young adults.
It remains unclear how it all started, but Peppa became an icon for rebelliousness in the country. All of a sudden, Peppa memes went viral on the Internet.
At first, a group of photoshoped pictures featuring Peppa and various well-known brands such as Supreme, Gucci and Balenciaga hit the hotspot on Chinese Twitter equivalent Weibo. Subsequently, merchandise bearing such recreated logos emerged on Taobao, one of the most used shopping platforms in China.
Vendors of these memetic products should be aware of the risks of being sued for potential IP infringement upon Peppa's copyright as well as the trademark rights of those famous brands.
While parody or fair use might work as a dense to impede the liabilities for infringements in some jurisdictions like the United States, it could be less effective before a Chinese court.
The fair use exemptions in China are mainly embodied in Article 22 of the Copyright Law, where it prescribes an exhaustive list of limitations on copyrights. The current legislative system, however, does not provide any protection for parody works in the context of IP law.
On the other hand, the public is not certainly aware of the fact that these parody works are actually“parodies”, since there has been news on social media regarding the collaboration of Peppa Pig and some well-known brands. Therefore, it is likely that the public may associate these memetic products with their corresponding brands.
A comparative look: parody protected by the US Copyright Act
The United States Supreme Court stated in a 1994 case, Campbell v. Acuff-Rose Music, Inc. that, a parody may qualify as “fair use” under the Copyright Act if it uses the original work to make a humorous or ironic comment on that work, and not just to gain attention or to avoid the time and effort required to create a new work. A fair use analysis is based on four factors:
Purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes;
Nature of the copyrighted work;
Amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and
Effect of the use upon the potential market for or value of the copyrighted work.
When determine if a parody is fair use, a court must take into account all of the foregoing factors, no single one of which is sufficient to justify or refute fair use.
A trademark parody case in the US: The North Face vs. The South Butt
It might be the most hilarious trademark parody in recent memory. The South Butt was started by James Winkelmann, who was a high school student when he came up with the parody of the famous brand.
The company sells products labeled "Never Stop Relaxing" mimicking The North Face's slogan, "Never Stop Exploring." A wave device and the company name appear near the upper right or left shoulder on jackets and shirts, similar to the logo and composition adopted by The North Face.
Clearly the North Face didn't share the humor and sued Winkelmann and his company for trademark infringement and dilution. The clothing giant claimed that the other party had caused it“irreparable harm” by producing his parody clothing line.
Winkelmann claimed that the South Butt was not founded to rip-off The North Face, but to make people rethink about the alternatives.
According to NBC News, the trademark battle was resolved with a non-disclosed settlement agreement out of court.
Nevertheless, if the court was going to decide on this case, the likelihood of confusion must be assessed.
Sometimes, the line between parody and piracy can be blurred and fuzzy, yet a wise parodist should always know the boundary.
Emma Qian
HFG Law&Intellectual Property
