CURRENT ONLINE
In halftime, Chicken stands victorious on Barney

The chicken vanquishes a Barney look-alike at half-time (before helping him to his feet).

Chicken trounces Barney again, in federal court

Originally published in Current, Aug. 10, 1998

By Karen Everhart Bedford

There appears to be no end in sight to Barney's days as the hapless victim of grown-up gags and vitriol.

Just when the great purple one's movie debut was about to top $10 million at the box office, the dino became the unwitting target of a public relations prank. Then a federal judge in Ft. Worth threw out a copyright suit that aimed to prevent the Famous San Diego Chicken from bashing a Barney imposter as entertainment at major sports events. [Earlier story.]

In a summary judgment issued July 29 [1998], U.S. District Court Judge John McBryde ruled that, because both Barney and his feathered foe are distinct, well-recognized characters, the the San Diego Chicken's rap-dance contest and sparring match with a Barney look-alike does not infringe on the popular dinosaur's trademark. Nor does the slapstick routine violate Barney's copyright, held by the plaintiff in the suit, the Lyons Partnership, L.L.P.

"Although plantiff does not appreciate defendants' intent, there is no doubt that parody is intended," the judge ruled. "Defendants' act is not an effort to confuse consumers, but rather to amuse."

Balancing public interest in preserving free expression against the public interest against creating consumer confusion, "free expression clearly prevails in this case," the judge ruled.

The skit in question, performed as a comedy gag at professional sporting events, begins as a slapstick lesson in rap dancing. The Chicken slaps a Barney look-alike into performing hip, athletic dance maneuvers. He later kisses and attempts to hug Barney for his stylish dance moves, but the dino rebuffs him and begins to skip away. A chase ensues in which the Chicken tackles Barney, wrestles him to the ground, and stands over him flexing his chicken muscles. The gag ends somewhat amicably, as the Chicken helps Barney to his feet and off the field, but later trips the dino up or flips him over a railing.

Judge McBryde dismissed Lyons' contention that the Chicken's routine confused and upset Barney's biggest fans--preschoolers, who are unable to understand the sparring as parody. "The fact that small children, incapable of reasoning, may have been confused by the chicken's act, does not amount to actual confusion. Here, few people would mistake the putative Barney as anything other than the target of parody."

"Lyons is obviously very disappointed by this ruling," said spokeswoman Kelly Lane, in a statement. "Lyons continues to believe that the Chicken's use of a Barney look-alike confuses and upsets young children who see their friend Barney being beaten up." The partnership is weighing an appeal.

Ted Giannoulas, the man in the chicken costume and target of the lawsuit, called the decision a victory for the First Amendment. "To paraphrase my purple adversary, I think the judge's decision is Super-Dee-Dooper."

Of all the comedic parodies of Barney, Giannoulas noted that his was the only one singled out for prosecution. "Hopefully, Barney will go back to being a peaceful playmate, rather than a litigious bully."

Dismissal of the Chicken lawsuit came just one day after Barney's handlers responded to an embarrassing prank that was circulated widely to the media.

In a press release promoting new "sing-along" audio cassettes, Debbie Ries, sales v.p. for Lyrick Studios, seemingly describes the tapes' usefulness on car trips: "Instead of having those little sh**s clamoring to stop at the next McDonald's, or those interminable whines of 'When we gonna get there' or 'I really gotta go, Mommy,' plug their ears with these latest banalities from Lyrick and you're guaranteed to arrive free of stress."

Nina Stern, whose p.r. agency unwittingly distributed the release on behalf of Barney's producers, said the prank was most likely the work of computer hackers. She issued a letter to the press apologizing for the mix-up.

"It's a shame that Barney, who stands so much for trust and innocence, can become the target for such a malicious prank," said Tim Clott, c.e.o. of Lyrick, in the letter.

One of the tapes, "Barney's Great Adventure Sing-Along," is a spin-off of the dino's first movie, Barney's Great Adventure. A spokesman for Polygram, the film's distributor, said the domestic box office receipts of $9.9 million was "terrific" for the movie, which had a limited theatrical run this spring in matinees. The film is now playing in theaters overseas and will be released on home video in September. Lane said Lyrick is evaluating now whether to produce another Barney film.

 

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Barney's producer sues chicken man for giddy assaults

Originally published in Current, Nov. 17, 1997

By Karen Everhart Bedford

His likeness has been pummeled by basketball bad boy Charles Barkley on Saturday Night Live, tortured grotesquely on interactive web sites, and, since 1994, knocked around by San Diego's "Famous Chicken," Ted Giannoulas, who dances and spars with a Barney-like character in performances at major sporting events.

Now the Lyons Partnership, keepers of the big purple dinosaur loved by millions of toddlers, has put its foot down. It recently filed a lawsuit against Giannoulas, insisting that he stop using "a character that's confusingly similar to Barney," in his routine, according to spokeswoman Kelly Lane. In a suit filed Oct. 8 [1997] in a federal District Court in Ft. Worth, Lyons Partnership is seeking damages of $100,000 for each chicken-dino performance going back to 1994.

Lyons alleges that the Famous Chicken's duels with a purple dinosaur infringe on its copyright and trademark on the Barney character. And, central to its complaint, the partnership says the assaults on Barney upset small children.

The company's lawyers began sending threatening letters to Giannoulas in 1994, when he worked the Barney parody into his act. Their requests that he stop performing it had no effect.

Then, last summer, while the performer in his chicken suit sparred with an unknown person in a dinosaur suit at a televised Texas Rangers game, producers cut-away to a shot of the crowd, "where small children were visibly upset to see Barney beaten up," explains Lane. That was "the last straw."

"We have a sense of humor and realize that lots of adults see that as funny, but to tamper with kids' emotions is no joke," she adds. "Small children take this very seriously."

Balderdash, says Ken Fitzgerald, attorney for the chicken. "He's never seen a child upset by this act. I've never seen children upset by it. We've seen children laughing." He contends that the shot of the distressed Texas tot was "a cutaway shot taken at a different time" than during the chicken's Barney parody.

"It is our position that the parody of the type performed by the Chicken is protected fair use and doesn't give rise to copyright infringement," asserts Fitzgerald. "There is no liability for trademark infringement because consumers are not and could not be confused into believing that Lyons is putting a Barney character out there to be satirized in this way."

Fitzgerald describes a routine in which Barney gets his share of licks in on the feathered beak-face. The performance begins as a dance contest: Barney appears while the Chicken is dancing to a rap song. Chicken tries to get Barney to "dance in a hip-hop, urban manner," but the purple one dances in a "child-like way," bouncing simplistically from foot to foot, until the Chicken slaps him a few times. Barney then "breaks out in an athletic display of hip-hop dancing," then bounces over to the Chicken, hits him, and stands over him in a "defiant, triumphant rapper-like pose."

At one point, Chicken kisses Barney's feet, but the routine ends with the Chicken tackling the dino from behind, wrestling and pinning him to the ground, and standing "over the top of him triumphantly."

"People at games laugh hysterically," says Fitzgerald. "They typically boo Barney when he appears, but in the course of the routine they laugh." The Chicken, he says, has gotten "nothing but positive feedback."

Complaints about the Barney parody have filtered through the chicken's hometown public TV station, KPBS. Deanna Martin Mackey, p.r. director for the station, recalls getting some calls from upset parents a few years ago. The Chicken's Barney parody had been publicized in the news. Apparently, at the time, the routine included attacks on Barney that were violent enough to knock the head off the purple costume. "We were being told it was frightening and disturbing to children," says Mackey.

Mackey remembers calling Giannoulas to share the concerns KPBS had received. "He was understanding and took it into consideration," she says. "He would not stop the show at the time, but was willing to not be so violent with the dinosaur."

The mother of a two-year-old, Mackey says she's puzzled at the vitriol adults direct at Barney. "I don't understand how people can be so negative towards the character, because children really do love the show and learn things from it. He's just teaching kids to be nice to each other."

Giannoulas did not respond to repeated requests for an interview. In a column published last week in the San Diego Tribune, he says the lawsuit is evidence of "a national shortage of jokes these days."

"We are, as a society, losing a great deal of our sense of humor," he says, and describes the Barney parody as "nothing more than good slapstick comedy."

But what's funny to adults is vastly different from what's funny to young children, according to experts in child development.

"From an adult's point of view, we can find humor in almost anything, but from a child's point of view, humor is much more real," says Don Shifrin, a pediatrician in Bellevue, Wash.

Children between the ages of two and three are Barney's target audience, according to Daniel Anderson, a professor of psychology at the University of Massachusetts at Amherst, an expert on children's responses to television. "Kids at this age tend to take things very literally," he explains. "When they see someone beating up on Barney, even if it's another nonhuman character, they think Barney is getting beaten up."

What's more, these kids really love Barney. They think he's real. They derive comfort from how happy and supportive he is. Some kids even sleep with their Barney plush toys "to get a sense of comfort and security," says Anderson.

So, how would young children perceive the Chicken's Barney satire, as described by Fitzgerald?

"What if the Chicken were beating up on Mr. Rogers?," Anderson asks. "How would you expect a three-year-old child to feel? What about a favorite uncle? A parent? Is this funny? The fact is, to a young child, it's traumatic, a serious thing."

Anderson says the routine delivers another message to the Barney set: "It's the beginning of telling them, 'The world is not what it seems. It is not a safe place. Even a character who provides guidance and support can be a victim.' That's what the San Diego Chicken is teaching two- and three-year-olds."

"Under what definition of entertainment is beating up Barney?" asks Shifrin. "Violent interactions with a kind, gentle, sweet manifestation of the wonderfulness of childhood?"

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