Winged Victory : Federal Judge Allows San Diego Chicken’s Free-Range Comedy--He Can Continue Performing Skit That Mocks Barney Character

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--hereafter 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. Seuss 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 the 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 Chicken’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 costumes.

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 better.

“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 amounted to an effort by a profitable company to censor comedy protected by the 1st Amendment. “While the subject matter seems silly, the constitutional issues are serious,” he said.

Fitzgerald, who may have beaten Barney in court but, like many parents, can’t escape him at home, said the case was the 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 comic in college.

The 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 booted from the Padres’ ball field and been sued by a cheerleader injured during a dance routine, and by a minor-league pitcher hurt in a base-running collision.

The Chicken performs his slapstick routine--imitating umpires, goofing with players and mocking fans--about 200 times a year in stadiums and arenas across the country. He does the Barney routine in nearly all of 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 impostor 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 yet.

“He still has a shelf life,” he said.