Federal Judge Allows
San Diego's Chicken free-Range Comedy- He Can Continue Performing
Skit That Mocks Barney Character
by Ken Ellingwood Times Staff Writer
Diego - There are times when our most cherished liberties
hinge on such weighty questions as this: Does a man in a chicken
suit have the right to mock one dressed as a TV dinosaur?
This is such a time. And the call
goes to The Chicken.
In a case rife with free-speech
issues and high silliness, a federal judge in Texas has ruled
that The Famous San Diego Chicken can continue performing a skit
in which he mocks and slaps around an ersatz Barney, the purple
dinosaur familiar to just about anyone who's had a waking moment
during the past decade.
U.S. District Judge John McBryde
tossed out a copyright infringement suit by the Dallas firm that
licenses Barney products, upholding the right of the defendant
- hereafer referred to as The Chicken- to taunt a Barney look
- alike during ballpark performances in the name of parody.
The Chicken mocked even in triumph.
"Victory is super de duper!"
gloated Chicken man Ted Giannoulas, borrowing one of those oh-so-endearing
Barneyisms. The judge cited cases involving cultural icons ranging
from Elvis to Dr. Suess in ruling that Giannoulas' inning-break
routine, in which The Chicken and faux Barney square off in a
dance contest and slap-fight, is protected under law.
The judge determined that the comedy bit was unlikely to fool
anyone into thinking the bust-a-move Barney was the real thing. (Barney is played by a member of Giannoulas' touring staff. )
"Whereas the real Barney is kind,
gentle and loving," McBryde wrote in a 21-page decision, "the
putative barney engages in fisticuffs with The Chicken and generally
behaves in a manner totally foreign to the real Barney. "
The licensing firm, Dallas-based
Lyons Partnership, filed suit against Giannoulas last October,
arguing that The Cicken's use of a Barney stand-in amounted to
infringement of copyright and trademark. The action against The
Chicken coincides with a broader legal campaign by Lyons aimed
at preventing the manufacture and sales of unauthorized Barney
It was not known how the famously
upbeat Barney was coping with the ruling, although company officials
said they were reviewing the decision. They fretted about the
impact of staged Barney-bashing on children too young to know
"Lyons continues to believe that The
Chicken's use of a Barney look-alike confuses and upsets young
children who see their good friend Barney being beaten up," said
spokeswoman Kelly Lane.
But over in The Chicken's corner,
attorney Kenneth Fitzgerald said the suit ammounted to an effort
by a profitable company to censor comedy protected by the First
Amendment. "While the subject matter seems silly, the constitutional
issues are serious," he said.
ruling was welcome news for the 44-year old Giannoulas, who has
weathered court battles and controversy since a San Diego radio
station hired him as a chicken-suited mascot in 1974. Giannoulas
broke away from the radio station and went on his own - he calls
himself a "free-range chicken" - after a court fight. Over the
years, he has been sued by a cheerleader claiming injury during
a dance routine, and by a minor-league pitcher over a base-running
The Chicken performs his slapstick
routine- imitating umpires, goofing with players and mocking fans-
about 200 times a year in stadiums across the country. He does
the Barney routine in nearly all the performances.
"It's a silly two-minute comedy
sketch in an inning break. People laugh hysterically," Giannoulas
said from Syracuse, N.Y. , where he was scheduled to perform at
a minor-league baseball game tonight. Yes, look for the Barney
imposter to take it on the snout again. The
Chicken is aware that every comedy routine runs its course and,
someday, so too will the Barney bit. "They all have a shelf life,"
Giannoulas said. But as long as the fans keep laughing, says The
Chicken, he's not quitting his mischief with the dinosaur just
"He still has a shelf life," he
Fitzgerald, who may have beaten
Barney in court but, like many parents, can't escape him at home,
said the case was a first in which a comic was sued for mocking
a copyrighted character. Other suits against comics, including
Robin Williams and David Letterman, were lodged by real people
and failed, said Fitzgerald, himself briefly a stand-up comedian