A LEGAL QUESTION

As She Who Must Be Obeyed and I were chowing down on this evening’s repast - osso buco, in case you’re curious - I caught one of the new Krystal ads from the corner of my eye.

Their latest campaign is based on an amusing premise: Mascots from competing fast-food burger chains are sneaking over to Krystal, presumably to load up on their high-quality (hah!) sliders. In later editions, said mascots are called on the carpet after having been caught red-handed. Wendy is given a dressing-down at her performance review; the Burger King is subjected to a humiliating press conference. The consequences, as it were, of being caught in burgrante delicto.

By way of illustration, here’s one that skewers Chick-Fil-A...



All of this raises a legal question... at least, I think it does. Do these advertisements constitute “fair use” of their competitors’ intellectual property?

One could make the case that, say, Ronald McDonald, Wendy, and the Burger King’s likenesses are being used for purposes of parody, thus meeting a condition of fair use. But I have trouble calling these ads parodies. They’re pretty straightforward hijackings, used for commercial purposes. My guess is that Krystal’s competitors - or their legal staffs, anyway - are smart enough to know that, while they might prevail in a civil action, the resulting publicity would do nothing but help give Krystal a huge dose of media exposure while making them look petty and ridiculous.

It has happened before.

There is, however, a slippery slope here. If it’s acceptable for Krystal to show the Burger King committing a minor social gaffe (or a not-so-minor violation of his own company’s policy) by eating a pile of Krystal sliders, what other even more reprehensible behavior is next? Having him knock over a liquor store? Or sodomize the Chick-Fil-A cows? What invisible line must be crossed before Wendy’s or Burger King can sue... and not be laughed out of court?

Feel free to weigh in with your opinion in the comments.