Buccafusco, Heald & Bu: Do Pornographic Knock-offs Tarnish the Original Work?

Trademark law provides a remedy against "dilution by tarnishment of [a] famous mark" and the extension of copyright term was justified in part by concerns about tarnishment if Mickey Mouse fell into the public domain. But there has been little evidence of what harm (if any) trademark and copyright owners suffer due to unwholesome uses of their works. Chris Buccafusco, Paul Heald, and Wen Bu provide some new experimental evidence on this question in their new article, Testing Tarnishment in Trademark and Copyright Law: The Effect of Pornographic Versions of Protected Marks and Works. In short, they exposed over 1000 MTurk subjects to posters of pornographic versions of popular movies and measured perceptions of the targeted movie. They "find little evidence of tarnishment, except for among the most conservative subjects, and some significant evidence of enhanced consumer preferences for the 'tarnished' movies."

Before describing the experiments, their article begins with a thorough review of tarnishment theory and doctrine, as well as consumer psychology literature on the role of sex in advertising. For both experiments, subjects were shown numerous pairs of movie posters, and were asked questions like which movie a theater should show to maximize profits. In the first experiment, treatment subjects saw a poster for a pornographic version of one of the movies; e.g., before comparing Titanic vs. Good Will Hunting, treatment subjects had to compare the porn parody Bi-Tanic vs. another porn movie. Overall, control subjects chose the target movie (e.g., Titanic) 53% of the time, whereas treatment subjects who saw the porn poster (e.g., Bi-Tanic) chose the target movie 58% of the time, and this increase was statistically significant. Women were no less affected by the pornographic "tarnishment" than men, and familiarity with the target movie did not have any consistent effect.

The second experiment was similar to the first, but at the end, subjects were shown pairs of recent movies that could plausibly generate sequels and asked which they would rather see a sequel of (e.g., Interstellar vs. Prometheus). Treatment subjects had earlier seen a poster for a pornographic version of one of the films (e.g., Enter Stella, with posters created by a graphic designer, as actual porn versions had not yet been produced). In the overall results, whether subjects had seen the porn poster had no statistically significant effect on whether they wanted to see a sequel of that movie, but there was an interesting demographic difference: subjects who described themselves as "very socially conservative" were less likely to choose targeted sequel movies in the treatment condition.

The authors explain that this is "the first systematic attempt to test the tarnishment hypothesis," not "the last word." They note, for example, that subjects only experience the tarnishing works for 5-30 seconds in a private setting, that MTurkers may not be representative of the U.S. public for this effect. But they argue that their results still "cast substantial doubt on the strongest claims of tarnishment theorists" and "should put the ball back in the court of tarnishment theorists to produce empirical support for their claims."

I'll conclude by noting that readers hoping to see lots of racy movie posters by downloading this article will be disappointed. But these results suggest that if someone wants to create an x-rated version of Testing Tarnishment in Trademark and Copyright Law, Buccafusco, Heald, and Bu would be delighted—or at least would have little cause for complaint.