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concerns when a defendant lacks the charmof a Muppet. The pornographic movie DebbieDoes Dallas was found to cause confusionbecause it used the trademarked costumes of theDallas Cowboys cheerleaders. (The court’s biaswas apparent in its description of the movie’s“gross and revolting” content. 83 ) On the otherhand, New York magazine’s use of trademarkedelements of the Old Farmers Almanac in asexually tinged Christmas issue was held not tocreate any serious confusion. The court foundnot only that the magazine “made it sufficientlyclear” that the reference to the Almanac was ajoke, but that New York’s First Amendmentright “of commentary and artistic expression”outweighed any harm to the Almanac that mightarise “even if there was some confusion as tosource or origin.” 84Trademark law also has two fair use defenses,but they are narrower and more specific thanthe freewheeling fair use factors of copyright.The first, “classic” or “descriptive” fair use,occurs when a phrase or image is used simplyto describe, rather than to identify, a productTrademark law also hastwo fair use defenses, butthey are narrower andmore specific than thefreewheeling fair use factorsof copyright.– for example, describing a cereal other than“Kellogg’s All Bran” as consisting of “all bran,”or describing a fish batter with words similar tothe trademarked “Fish-Fri.” 85The second, or “nominative fair use” defense,arises when a trademark is used to identify aproduct or service, but not to deceive the publicor sow confusion. One way to understandthe difference is that classic fair use occurswhen somebody uses the contested trademarkto describe his own goods or services, andnominative fair use occurs where the mark isused to refer to the goods or services of its owner,as in comparative advertising or appropriationistart.Thus, Tom Forsythe’s “Food Chain Barbies”were nominative fair use. 86 When a formerPlayboy model used the Playboy trademark inpromotional material describing her career,she also qualified for nominative fair use. 87And when New Kids on the Block sued USAToday for using their name in connection witha telephone poll asking readers to identify theirfavorite member of the group, the court said itwas nominative fair use because the paper usedonly as much of the mark as was necessary toidentify the group, and there was no suggestionof sponsorship or endorsement. 88Because these fair use defenses are narrowerthan their copyright law cousin, the FirstAmendment also comes into play in trademarkcases. (In copyright cases, the Supreme Courthas said, no First Amendment scrutiny isneeded unless Congress changes the “traditionalcontours” of the law, which already includesfair use and other free expression safeguards. 89 )Courts confronting First Amendmenttrademarkdilemmas usually balance the owner’s(and public’s) interest in avoiding confusionagainst the rights of artists, satirists, or othercommenters to use the trademarks in makingtheir point. Or, in a variation on this theme,courts apply the “likelihood of confusion” teststringently, in deference to the free speech rightsat stake.So, for example, in two of the many lawsuitsbrought by Mattel to try to stop unauthorizeduses of Barbie – one involving Forsythe’sculinary parodies; the other a rock ’n roll songthat mocked the pulchritudinous doll – theartists’ First Amendment rights weighed heavilyin the balance. 90 Another court found that acomic book parody of bodybuilding ads hadFirst Amendment protection that outweighedthe slim likelihood of confusion with an actualbodybuilding company. 91And when the actress Ginger Rogers sueddistributors of Federico Fellini’s Ginger andFred – a movie about two itinerant cabaretperformers – the court found little likelihood that12 Will Fair Use Survive?