Defending the right to be funny

by Paul Alan Levy

Late last year, Harrison Greenbaum, a New York comedian and magician, included Christopher Nicholas Sarantakos, better known in the magician trade as Criss Angel, who is, apparently, a very well known magic act, in an annual satirical review that he offers of major figures in the magic trade. A particular point of this performance was a restaurant that Sarantakos opened in a rural area outside Las Vegas called Criss Angel Breakfast Lunch and Pizza, or CABLP. Greenbaum put together a parody of the restaurant’s menu, and put the menu online for the performance, using the domain name, which was still available for purchase because Sarantakos, quite logically, chose some much shorter domain names ( and which could much more easily be typed into a browser.

Angel was neither honored to have been included in the satirical hall of honor, nor amused by the jokes. He hired a lawyer in New York to send Greenbaum a demand letter asserting that the parody menu infringes his copyright and his trademark, and that the domain name infringes his trademark, and threatening both to sue for damages and to invoke the Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) to seize the domain name. Hoping to achieve a prompt resolution, Greenbaum’s initial reaction was to offer to give up the domain name, but at that point Sarantakos got greedy, demanding both a confidentiality clause as well as a commitment that Greenbaum would never again display the parody menu.

The result is that Sarantakos is likely to get nothing besides more publicity for the CABLP Restaurant parody. In a letter sent late last week, I explained both that the domain name for the parody menu is well protected by a line of cases that Public Citizen established back in the first decade of this century, and that the menu itself is a fully protected, noncommercial parody that cannot possibly be confused with Sarantakos’ commercial enterprise and in any event is fair use under both trademark and copyright laws. Rather than sue immediately for a declaratory judgment of noninfringement, we are content to let Sarantakos be the one to decide whether to file suit and, if so, to decide which federal court should hear the case.

With one exception. Although there are a number of UDRP decisions (such as here and here) where UDRP panelists have said that, in disputes between US trademark holders and US domain name owners, the First Amendment and US fair use principles should be followed, UDRP panelists are largely not to be trusted to follow precedent and the entire process is biased in favor of trademark holders, as has long been documented. So, if Sarantakos goes to the UDRP, Greenbaum will be compelled to seek the judgment of a federal court.

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