Seeing the opportunity to hitch his wagon to a star, the Chicken incorporated a Barney look-alike into his acts. The character, a person dressed in a costume (sold with the title "Duffy the Dragon") that had a remarkable likeness to Barney's appearance, would appear next to the Chicken in an extended performance during which the Chicken would flip, slap, tackle, trample, and generally assault the Barney look-alike.

The results, according to Lyons, were profound. Lyons regales us with tales of children observing the performance who honestly believed that the real Barney was being assaulted. In one poignant account related by Lyons, a parent describes how the spectacle brought his two-year-old child to tears. In fact, we are told, only after several days of solace was the child able to relate the horror of what she had observed in her own words--"Chicken step on Barney"--without crying. After receiving such complaints from irate parents who attended the Chicken's performances with their children, Lyons sought to defend this assault on their bastion of child-like goodness and naiveté.

Oh, the humanity!  The poor kid.

But from the record -

Giannoulas offers a slightly different perspective on what happened. True, he argues, Barney, depicted with his large, rounded body, never changing grin, giddy chuckles, and exclamations like "Super-dee-Dooper!," may represent a simplistic ideal of goodness.

Giannoulas, however, also considers Barney to be a symbol of what is wrong with our society--an homage, if you will, to all the inane, banal platitudes that we readily accept and thrust unthinkingly upon our children. Apparently, he is not alone in criticizing society's acceptance of a children's icon with such insipid and corny qualities. Quoting from an article in The New Yorker , he argues that at least some perceive Barney as a "pot-bellied," "sloppily fat" dinosaur who "giggle[s] compulsively in a tone of unequaled feeblemindedness" and "jiggles his lumpish body like an overripe eggplant." The Talk Of The Town: Pacifier, The New Yorker, May 3, 1993 at 37. The Internet also contains numerous web sites devoted to delivering an anti-Barney message. (3) Giannoulas further notes that he is not the only satirist to take shots at Barney. Saturday Night Live, Jay Leno, and a movie starring Tom Arnold have all engaged in parodies at the ungainly dinosaur's expense.

So THERE!

But wait!  There’s more!

Perhaps the most insightful criticism regarding Barney is that his shows do not assist children in learning to deal with negative feelings and emotions. As one commentator puts it, the real danger from Barney is "denial: the refusal to recognize the existence of unpleasant realities. For along with his steady diet of giggles and unconditional love, Barney offers our children a one-dimensional world where everyone must be happy and everything must be resolved right away." Chala Willig Levy, The Bad News About Barney, Parents, Feb. 1994, at 191-92 (136-39).

You see, Giannoulas is claiming that, through careful use of parody, he sought to highlight the differences between Barney and the Chicken.  He says he was not merely profiting from the spectacle of a Barney look-alike making an appearance in his show.  Instead, he was engaged in a sophisticated critique of society's acceptance of this ubiquitous and insipid creature.

But, you ask, who won, Barney or the chicken?

Because this case comes to us on appeal from a summary judgment motion, we review the district court's decision de novo applying the same standards applied by the district court. See Boyd v. State Farm Ins. Cos., 158 F.3d 326, 328 (5th Cir. 1998). The moving party is entitled to summary judgment if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

A trademark is a word, name, symbol or device adopted and used by a manufacturer to identify the source of goods. To establish a trademark violation, Lyons must establish that Giannoulas has used in commerce a mark confusingly similar to Lyons's. 15 U.S.C. § 1127. (4) The district court held that there was no likelihood of consumer confusion. In reaching this decision, the district court relied on its finding that the Chicken's performance was clearly meant to be a parody.

Lyons makes two arguments with respect to its trademark confusion claim. First, Lyons argues that Giannoulas's use of Barney was not intended as a parody. Because Lyons continues to contest this issue on appeal, we first address whether there are any genuine issues of material fact regarding whether Giannoulas was engaged in parodying Barney. Lyons's second argument is that the district court accorded too much weight to its finding that Giannoulas's use was a parody.

In general, a parody is defined as an "artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule." Campbell v. Acuff-Rose Music , 510 U.S. 569 (1994)(quotation omitted). In general, a reference to a copyrighted work or trademark may be permissible if the use is purely for parodic purposes. To the extent the original work must be referenced in order to accomplish the parody, that reference is acceptable. Giannoulas claims that his use of a Barney look-alike clearly qualifies as a parody. He used the minimum necessary to evoke Barney--while he used a character dressed like Barney that danced like Barney, he did not make any other references to the mythical world in which Barney resides. He did not, for instance, incorporate any of Barney's other "friends" into his act, have the character imitate Barney's voice, or perform any of Barney's songs. According to Giannoulas, Barney was clearly the butt of a joke and he referenced the Barney character only to the extent necessary to conjure up the character's image in his audience's mind.

Lyons argues that the conduct was not a parody but simply the use of Barney. To support this claim, Lyons points to two kinds of proffered evidence. First, Lyons notes that Giannoulas himself admits that he did not have a definite plan when he incorporated Barney into the act. Lyons argues that this creates an issue of fact regarding whether Giannoulas really intended to parody Barney or simply intended to profit from incorporating the Barney character into his act.

This argument is meritless. Clearly, in the context in which Giannoulas intended to insert a reference to the Barney character, the humor came from the incongruous nature of such an appearance, not from an attempt to benefit from Barney's goodwill. This point is clearly established by the fact that the Chicken's actions toward Barney seem to have always been antagonistic. Although the performance may have evolved into a far more sophisticated form of commentary, even at its inception, it was clearly meant as a parody.

The second argument made by Lyons is that the audience could not have understood the performance to be a parody. Lyons assumes that the target audience here is children and that children would clearly believe that the caricature actually was Barney. Although Lyons is correct that the intended audience is an important factor in determining whether a performance qualifies as a parody, Lyons presented no credible evidence that a significant portion of the audience at evening sporting events are children. Even if young children--like the two-year-old who had such a traumatic reaction to the down-trodden Barney--are in attendance, we would expect them to be supervised by parents who could explain the nature of the parody.

We therefore agree with the district court that Giannoulas's use of the caricature clearly qualifies as a parody. We note that Lyons's insistence that the Chicken's act is not a parody is, in our view, a completely meritless argument.

So score one for the chicken. 

The dinosaur loses. 

"Chicken step on Barney."

This is, course followed by a long discussion of the Lanham Act and copyright issues.  Go to the link and read all about Elvis Presley Enters. v. Copeck , 141 F.3d 188, 194 (5th Cir. 1998); Conan Properties, Inc. v. Conan's Pizza, Inc., 752 F.2d 145, 149 (5th Cir. 1985); Armco, Inc. v. Armco Burglar Alarms Co. , 693 F.2d 1155, 1159 (5th Cir. 1983).  Or don’t. 

Lyons cites to Elvis to argue that a strong mark can be relevant even in the context of a parody. In Elvis, however, the issue was whether the Elvis trademark had been infringed by a nightclub titled "the Velvet Elvis." In that case the parody was not of Elvis but of cheesy sixties bars. Therefore, because Elvis was not the brunt of the joke, the fact that Elvis is a strong trademark could be regarded as an endorsement of the nightclub.

Geez!

But kids still like dinosaurs. Go figure.

__

Rick, The News Guy in Atlanta, defends Barney (somewhat) –

First of all, as a parent and a catch-as-catch-can observer of "kid kulture," I think the famous dinosaur mania may be dying way down, just as the Hopalong syndrome of my day eventually did.

But I must also happily admit, I really think that insipid Barney character actually helped reinforce those attitudes of niceness we tried to instill in our son - back when he was old enough to watch it without losing his lunch, that is; he's now eleven.

I also remember my mom back then sneering that parents just use Barney as a babysitter; my reply was that, "Well, duh! I mean, SOMEBODY has to baby-sit, and you sure-the-hell aren't going to do it!" (She was living 3,000 miles away in California at the time.)

On the other hand, this legal case seems to me like a slam-dunk for parody from the get-go.

The only chance the Lyons Partners had, as far as I can see, was to put all their emphasis on the target audience, which was everybody in the stands - not just adults, who could presumably tell the difference, but also some little kids, many of whom probably genuinely believed it was Barney having the crap kicked out of him, and would only see their parents telling them otherwise as a version of, "Who ya gonna believe, your loving dad, or your lying eyes?"

The only recourse I can see for the plaintiff in this case is to hire some humongous professional wrestler, dress him up in a Barney suit, have him show up at a game and go out on the floor and beat the living f**king sh*t out of that goddamned chicken.

With any luck, every tiny tot in the place will jump up, with fists waving in triumph, and shout, "Whoa!!! Go, Barney, go! Testify! Truth to Power!" And then they could turn to their parents, and by way of explanation, sing a little snatch of Dylan's "The Times, They Are A'Changing!" - and then sit back down.

It's just this fantasy I have.

Actually, you could read the whole passage on Barney from the Gopnik book "Paris to the Moon" - not available online as far as I can tell.  He is amazed that the show does pacify his very young son, who says mysteriously - "I don't like Barney.  I like the show."  The French neighbor kids also watch, mesmerized, not even knowing the language. 

Visual Valium.  Cool.

Hey - it works.

As for the values it instills? 

Whatever.

Yeah, the dinosaur thing has faded.  I spent hours before Christmas trying to find a "Hello Kitty" parasol for my Tiffany - and she was the one who liked dinosaurs the most.  Soon I'll be down in Carlsbad for her eight birthday.  I'll check with my sister - grandma - as to what's hot now.  I have no idea.

But see this on Gopnik -

The Montreal-raised writer insists one of the main reasons he and his wife relocated to Paris was to escape the "Barneyfication" of his young son by the omnipresent American media. No Playstations and purple dinosaurs for this kid. ""We want him to grow up where everything he sees is beautiful," we said, and though we realized the moment our backs were turned our friends eyes were rolling. We didn't care." Gopnik realizes the attempt to insist on a particular set of pleasures for a kid - "to impose a childhood on a child" - might appear "silly or even inappropriate and doomed," but he justifies his feelings in one succinct, extraordinary line: " The romance of your child's childhood may be the last romance you can give up."

Barney turns out to be waiting for them in Paris; it turns out there is no escape from American cultural exports. But Gopnik does his best with young Luke. The adventures, many with his son in tow, are adventures with a lower-case a; attending a puppet show in Luxembourg gardens, riding with Luke on an ancient carousel, and attending an outrageously expensive family spa.

Our Man in Paris, Ric Erickson - editor of MetropoleParis – has some thoughts on that!

There are French parents who try to do what Gopnik was seeking - totally insulate their kids from insane commercialization, mindless TV, trash music and books.  Their kids even wear different clothes - like ordinary shirts and pants.  One can wonder where the hell they find them.

As an adult with limited TV access - just the basic five channels - and less patience with the programming, it is perfectly easy to overlook commercial hoopla along the lines of last week's Paris launch of 'Star Wars III.'  One night's TV-news showed a costume party at the Rex cinema and I wondered what the occasion was.  Halloween in May?  Then George Lucas got the Cannes treatment and it was all clear.   But it is not at all clear because my memory of 'Star Wars I' is dim, compared to, say, 'American Graffiti.'

Concurrently Arte-TV has been showing, and shows during Saturday night prime-time, science documentaries.  They had a six-week series about evolution recently.  Listen! I am not a science fan or in love with documentaries, but this is high-class interesting stuff compared to the so-called 'entertainment' on the other channels.  Halfwits applauding other halfwits.

I used to think the French parents who tried to shield their kids from 'funky western civilization' were doing them a disservice.  Trivia is important, I think, because it fills up obscure corners of the brain with useless fluff.  Can you imagine what a brain might be like without any of this?  What's the kid going to talk about in the pool hall?  This goes on all through life.

It does not fail to amaze me that I meet people now - yes, even in Paris! - who read the same comic books as I did.  The amazing part is that back then I didn't know anyone else who read the same comic books.  In fact, they didn't read anything.  If they hadn't been EC Comics, I would say now that I must have been a nerd.  Almost needless to say, I have no idea where those people are now, but imagine that their memories are impoverished.

The French have no hope is stopping the tidal wave of commercial crap.  Those that can want to get in on the bonanza, get French stuff right up there and rake in the moola.  Who can blame them?

But there's so much being produced, and there's all the stuff - a lot of it very good - that is less than blockbuster material.  Go to any bookshop and look at the flood of titles.  One in a hundred or one in five hundred may become a best-seller, gain a cult following, become a worldwide conglomo.  The other 499 have their modest sales, and end up as discount wares.

A new trend, not just here but everywhere, is the personification of nothing.  Do you have a portable phone?  If so you need a personalized ding-a-ling for it, a bit of soft porn for its mini-screen and maybe an add-on tranquilizer dispenser.  Almost better yet, get a subscription to an online game and don't forget to sign up for the SMS service.  If you don't get many actual phone calls, you can pay for lots of other stuff.

In a way, in comparison, the online game parlors are honest graft.

You pay for what you get and when you pass these places they are full of game players, like the dim pool halls of the past.  In the old days, 'they' were up to no good in there.  But now?  They probably don't even get tips about how to steal bikes.

Back to Arte's evolution series.  There was one about whales.  Some scientists have a hunch that whales used to be birds.  They left the sky because the water was safer.  I forget what they said happened to make the dinosaurs disappear, but it was many millions of years ago.  Maybe the dinosaurs became birds, and then gradually changed into whales.

Compared to a new ding-a-ling for my portable phone, the story of evolution is truly interesting.  According to triumphant statistics there are only about 20 million in France without portable phones.  Subtract babies, folks in jail or the armed forces, and everybody above 65, and all the rest have phones.  Except me.

Rick in Atlanta says the dinosaur fad has passed.  Ric in Paris is, when not following trends, watching a dinosaur show on Arte – and in an email I receive this –

“Dinosaurs: Ancient Fossils, New Discoveries,” the new exhibit at the American Museum of Natural History in New York, offers a walk-through re-creation of a 130-million-year-old Chinese forest populated with previously unseen models of beaked and feathered dinosaurs, dino-eating mammals and even flying dinosaurs such as Microraptor — a four-winged, feathered glider.

The New York show is explained here with pictures (a feathered dinosaur!) and video clips.