Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name

 by Michael C. Dorf

My latest Verdict column previews next week's Supreme Court oral argument in Jack Daniel's Properties v. VIP Products. For those of us who teach and generally write about constitutional law--and thus spend a whole lot of our professional time gritting our teeth at the latest claim by Messrs. Thomas, Alito, et al that the original (and supposedly widely shared) understanding of some vague constitutional term just happens to align perfectly with the Republican Party's ideological agenda in the 21st century--the Jack Daniel's case is a welcome diversion.

At a minimum, the case illustrates that the people who operate Jack Daniel's and/or its corporate overlord Brown-Forman are a bunch of stuffed shirts. Our first clue might have been that the company insists that its booze is "Tennessee whiskey" rather than bourbon. But if there were any doubt, the case now before SCOTUS shows that, despite the company's protestations in its brief, it has no sense of humor. Jack Daniel's sued VIP Products claiming that the latter's poop-themed dog toy parodying a bottle of Jack infringes its trademark. And to be clear, "Bad Spaniels The Old No. 2" is bottle-shaped but not a bottle, contains no whiskey or any other liquid, and, again, is a dog toy.

Ridiculous, right? To be sure, the district court's extremely problematic finding that there is a likelihood of confusion among customers concerning the two products is not at issue in SCOTUS. Rather, the question is whether First Amendment protection for parody should inform the statutory likelihood-of-confusion test. Jack Daniel's says no; VIP Products says yes. I contend in the column that VIP Products has the better of the argument.

I also say in the column that confusion is not merely a by-product of parody but can be an essential element of parody. As Justice Souter wrote for a unanimous Supreme Court in Campbell v. Acuff-Rose Music, Inc., “[p]arody's humor . . . necessarily springs from recognizable allusion to its object through distorted imitation.” In the column I offer my April Fools' posts as an illustration of how initial confusion can resolve into amusement.

I might also have adverted to the name of this blog, which is both descriptive--just under half of the essays here are by me, Dorf, and they are mostly on topics related to law--and also a humorous if not exactly parodic reference to a video made by comedian Tim Conway in the 1980s. In Dorf on Golf, Conway, as Derk Dorf, parodies instructional golf videos. You can find the entire original half-hour video on YouTube, but the versions I saw there appear to be bootlegged. Given that today's essay is about intellectual property, I don't want to link to those. Instead, here's the trailer.

I should have watched Dorf on Golf before naming this blog Dorf on Law when I started it in 2006, but I confess that I never did. I remembered that Conway had made and marketed the video, but the extent of my due diligence was checking the Patent and Trademark Office's registry of trademarks, where I was pleased to discover that Conway had not registered "Dorf on Golf" or "Dorf on . . ." anything. Having now watched some of Dorf on Golf for the first time, I have a few observations about its portrayal of people with dwarfism. ("People with dwarfism" is the preferred term of the organization Little People of America, so it's the term I'll use.)

Conway's Derk Dorf was created by having Conway stand in a hole and showing his knees as his feet, thus suggesting that he has dwarfism. Not all of the humor in Dorf on Golf arises out of the fact that Dorf has dwarfism. Some of the humor is (not-very-funny) Benny-Hill-type slapstick. Some comes from the foolishness of Dorf's caddy. But overwhelmingly, we can say about Dorf on Golf something akin to what Hari Kondabolu said about the erstwhile Simpsons character Apu: the central joke of Apu is that he's Indian. So too with Conway's Dorf: the central joke is that he has dwarfism.

Indeed, the name "Dorf" was likely chosen because it sounds much like "dwarf." That hypothesis makes sense of the incongruity that "Derk Dorf" is a German-ish name but Conway portrays the character with a vaguely Swedish accent. Conway likely came up with an accent he thought funny and then independently chose a name that was an allusion to the character's stature.

We can cut Conway a little bit of slack, I suppose, because 1987 was a long time ago, but even more recent portrayals of people with dwarfism are shockingly insensitive. Consider the 2003 film Tiptoes, in which (spoiler alert) Matthew McConaughey's character doesn't tell his girlfriend that the other members of his family have dwarfism until she is pregnant with their child and wonders whether the baby will be born with dwarfism as well. The filmmakers inexplicably chose to cast Gary Oldman as McConaughey's short-statured "twin" brother. Writing in The Onion's AV Club in 2010, Nathan Rabin had this to say, in what I can only assume (because I haven't seen and won't see Tiptoes) is a brutal but fair assessment:

The casting of a full-sized actor undercuts the film’s noble intentions. Tiptoes wants us to believe that little people can do anything—except, apparently, play a key role in Tiptoes. Casting Oldman as a dwarf is like a well-meaning liberal producer making a film version of A Raisin In The Sun in the early ’60s with Peter Falk in blackface in the lead role. Tiptoes awkwardly recalls painfully earnest message movies of the ’50s and ’60s. Think of it as Guess Who’s Coming To Dinner (Here’s A Hint: He’s Really Fucking Short). 

If you're thinking that 2003 was twenty years ago and that surely this sort of thing doesn't happen anymore, I'd remind you that three days ago Brendan Fraser won a best-actor Oscar for wearing a fat-suit in The Whale.

Meanwhile, I managed to blissfully avoid all knowledge of the existence of Tiptoes until yesterday, when, in connection with writing this essay, I sought a kind of forgiveness from my fellow vegan, the incomparable Peter Dinklage. I Googled "what does Peter Dinklage think of Dorf on Golf?" The internet provided no answer to that question, but it did direct me to Rabin's review of Tiptoes, presumably because Rabin begins his review with a deadpan description of Dorf on Golf and later mentions Dinklage (who had a role in Tiptoes).

So, where does that leave me? Having now seen enough of Dorf on Golf to conclude that its entire premise is offensive, should I change the name of this blog? I gave the question some thought but elected to keep the name. Candidly (and perhaps decisively), changing the name would undercut the blog's reach substantially and thus is not in my own interest. Less self-servingly, I've learned over the years that almost nobody has ever heard of Dorf on Golf. Certainly my younger readers hadn't. Thus there's not much of an association with Conway's work to begin with. True, today's column creates a greater association, but I hope that the primary effect of this column will be to distance myself and this blog from the Conway character. That said, I apologize to any readers with dwarfism who find the allusion to the Conway vehicle offensive.

Finally, I don't see any incongruity in my criticizing Jack Daniel's for not being able to take a joke while criticizing Conway (a little) and others (more) for making jokes whose humor is premised on the idea that some people's very existence is funny in virtue of the fact that they are stigmatized for having conditions or characteristics that the joke makers do not have.