Lawyer For Mother Accused Of Killing Baby, Threatens Separate Lawsuit Over People Copying His Facebook Photos

from the good-luck-with-that dept

Ah, the perils of lawyers confused about the internet. Reader kb alerts us to the news of lawyer Jose Baez, who apparently has received plenty of attention for defending Casey Anthony, a mother who stands accused of killing her 2-year-old child. Apparently, some of the blogs that are reporting on the case pulled some photos from Baez's Facebook profile and Photoshopped them to include in blog posts. Baez's response is to threaten a lawsuit against those bloggers saying it's copyright infringement, while pulling down all of his photos. As kb notes, it appears that this lawyer doesn't seem to understand copyright law, fair use, Facebook's privacy settings or the Streisand Effect in that this effort is only drawing that much more attention to the blog posts he's upset about. Nice work.

Filed Under: casey anthony, copyright, fair use, jose baez, parody, privacy

Copyright And The First Amendment: Lack Of Satire Coverage Leads To Stifling Of Speech

from the what's-wrong-with-satire dept

As has been discussed many times in the past, the courts have dealt with the inherent conflict between copyright law and the First Amendment by saying that the two "safety valves" of "fair use" and "the idea/expression dichotomy" helped make sure that speech was not really stifled under copyright law. Of course, there are tons of examples where these "valves" don't work -- and one clear one is the bizarre and still not clearly explained distinction between "parody" and "satire." Parody is considered a valid fair use defense, while satire is not. The distinction is mostly about whether or not the work in question is "commenting on" the work that it is using (parody) or using the work to comment on something else (satire).

Copyright litigator Ray Dowd recently discussed this issue in questioning the famous Ninth Circuit decision back in 1997 that more or less set the ground rules here, Dr. Seuss vs. Penguin Books about whether or not a book called The Cat Not In the Hat was protected fair use. The court ruled that it was not, because the work was satire -- and since it used the Dr. Seuss characters not to comment on Dr. Seuss or "the cat in the hat," but to comment on the OJ Simpson trial, that it was not protected under fair use. As Dowd notes, this would seem likely to stifle political speech:

So if I want to draw former President George W. Bush as Mickey Mouse and parody him by placing him in a Mickey/Minnie scenario, by this logic Disney can stop me from engaging in this core political speech because I am not making fun of Mickey, only of the former President.

How to permit political speech, promote creativity and maximize economic welfare for both copyright creators and society in general are questions implicated in these debates, with the cultural pendulum slowly swinging towards the Remix culture camp. There are a few signs that legal culture is moving in that direction, with judges taking a more expansive view of fair use.

Along those lines, the EFF is now expressing concern over the recent ruling in favor of Don Henley against a California Senatorial candidate, Chuck DeVore. In his advertising, DeVore used a couple reworkings of Henley songs ("The Hope of November" and "All She Wants to Do Is Tax," which were versions of Henley's "The Boys of Summer" and "All She Wants to Do Is Dance"). The court, as in the Dr. Seuss case, noted that since DeVore's use was not parodying Henley, there was no fair use. As the EFF points out, this makes little sense, and leads to some questionable outcomes:

The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?

The trouble is the misguided way that some courts have distinguished "parody" from "satire" in when measuring fair use. "Parody," in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison's "Pretty Woman," the Supreme Court found that the use was permitted. A "satire," in contrast, involves using a work to comment on something other than the work itself.

So at what point do the courts (or Congress) realize that not only is this distinction pointless, but also that this is a clear situation where these so-called "safety valves" to protect the First Amendment are not working. Political speech is being denied due to a law from Congress (who, we are told, "shall make no [such] law").

Filed Under: copyright, free speech, parody, satire

How Not To Handle A Parody Video: Threatening Legal Action

from the hello-ms.-streisand dept

A whole bunch of people have sent in variations on this story, which involves scientist Michael Mann, one of the main figures involved in the recent (misleading and totally blown out of proportion) controversy over climate change research, threatening legal action against people who made a satire video, which includes his image. Honestly, it's hard to think of a move more likely to backfire than this. His lawyers should have done everything in their power to talk him out of making such a threat. Think about it:

• You have groups who want publicity making fun of him
• These groups also want a legal battle with him where they might be able to gather additional info from him
• They made a clearly legally protected video

Sending a legal threat here not only doesn't work, because the legal basis is suspect, but it plays perfectly into the hands of those who made the video in the first place. No matter what you think of Mann's work, it's hard not to think that it's an incredibly dumb thing to threaten legal action in this situation. The actual cease & desist letter also raises some legal threats that have little basis in the law. It threatens the group that posted the video for using Dr. Mann's likeness, claiming that it was pulled off the Penn State website, and "is not authorized, and infringes on various copyrights." First of all, merely making use of a publicity photo in the video is unlikely to actually infringe on anyone's copyrights, but more to the point, it almost certainly does not infringe on Mann's copyrights. If anyone holds a copyright on that image, it would be the photographer who took the image or (more likely) Penn State. The lawyers do cc a photographer -- so perhaps they're suggesting he holds the copyrights, but they make no claim that they represent him.

Either way, it's hard not to see the video as protected free speech. The use of his likeness is not (as the letter claims) for commercial purposes, but to mock him. It clearly hurts his feelings, but that's not illegal. The claims of defamation are also ridiculous. Even if you believe that Mann's infamous comments were taken out of context, there's a widespread discussion over what happened with the data in question, and arguing that it's defamatory to make such a claim is a stretch.

Yet again, we see a legal cease & desist threat being used not for an actual legal reason, but because someone doesn't like something on the internet... and the result, in true "Streisand Effect" fashion, is to call significantly more attention to the content they hoped would disappear. This video wasn't going to convince people one way or the other in this debate. People who want to believe that climate change data was falsified were going to believe it no matter what. Those who feel otherwise aren't going to have their mind changed by a silly video. Threatening legal action does nothing but draw more attention to the the issue.

Filed Under: lawsuits, michael mann, parody, video

Reed Elsevier Sues Punk Band Over Parody Logo That Was Discontinued Years Ago

from the daily-trademark-variety dept

brian williams alerts us to the news that the punk band The Vandals was recently sued by publishing giant Reed Elsevier because back in 2004, the band put out an album that used the font used by Hollywood trade publication Daily Variety for its own name on the album cover:
After the album was released, the band and its record label were sent a cease-and-desist over the logo. Rather than fight it (and they had a strong parody case), the band and the label complied with the C&D and stopped using the logo, replacing it with the one you see at the bottom of the image above. The Vandals seems quite confused over the nature of the lawsuit, seeing as they complied with the C&D more than five years ago:

The Daily Variety claims that our old logo for Hollywood Potato Chip, which is a parody of the Daily Variety logo commenting on the materialistic culture of Hollywood, is still on the Internet and they are suing us for this. We agreed not to use this logo anymore and we have no product for sale with this logo so their claims that we are intentionally using it and harming the Daily Variety are ludicrous.

We do not have this logo, or any other of their logos on any of our sites under our control. They are telling us that it is still on the Internet but they wont tell us where it is. Instead, they have demanded a HUGE sum of money. I mean HUGE, OUTRAGEOUS, and IMPOSSIBLE TO RAISE; and $25,000 for their attorneys to cover all the damages they have suffered from what they call a breach of our settlement agreement.

We have breached nothing. We are just a punk band and a small insolvent record label trying to keep stuff on the shelves and pay royalties to other artists.

Website The Wrap asked Reed Elsevier for comment and got the following message, which doesn't address any of the actual issues:

"The stylized VARIETY mark is a very well known and valuable trademark which the Vandals misused," Henry Horbaczewski, counsel for Reed Elsevier, wrote in an e-mail message to TheWrap. "We sued them, and they accepted a settlement agreement in which they promised to stop misusing our mark, because we wanted to stop the misuse, not their money. They then ignored their agreement."

Horbaczewski added: "[Vandals drummer Joe] Escalante is a lawyer. He should have known the consequences of his actions."

It's difficult to see how they have much of a case unless there's a lot more going on here. First of all, the use of the logo here is almost certainly protected as a parody use -- and it's difficult to believe that anyone (moron in a hurry or not) would face a likelihood of confusion and believe somehow that the album was endorsed or supported by Daily Variety. Even so, if it's true that The Vandals are not selling anything with this logo, then it's difficult to see how Reed Elsevier can claim that this is "use in commerce." This whole thing seems like a pointless lawsuit for no reason whatsoever. Perhaps Reed Elsevier's lawyers would be better served making sure that the company isn't publishing fake, ghost-written journals at the behest of industry interests, rather than suing a random punk band for a parody...

Filed Under: daily variety, parody, the vandals
Companies: reed elsevier

Canadian Government Shuts Down Yet Another Yes Men Parody... Takes Down 4,500 Innocent Sites

from the collateral-prank-damage dept

Famous politico-pranksters The Yes Men have a long history of putting forth convincing parody websites that get those they parody to rush around to get the websites offline. Back in 2007, there was the fake ExxonMobil site that got pulled. Earlier this year it was the fake Chamber of Commerce site that the real Chamber issued a DMCA takedown over. The latest prank is based up in Canada, with the Yes Men setting up some parody sites of Canadian government organizations, promising massive greenhouse emissions reductions. This greatly upset the Canadian government who ordered the websites' service provider to pull them down. However, as Michael Geist points out, in the rush to pull down the sites, the ISP also took down 4,500 other websites. Seems like quite a bit of unnecessary collateral damage. Of course, this is exactly what the Yes Men want. For every takedown, they get another burst of publicity.

Filed Under: canada, innocents, parody, takedown, yes men

North Face Didn't Get The Message; Sues South Butt

from the yeah,-that'll-go-over-well dept

Earlier this year, we wrote about how outdoor clothing firm North Face was seriously overreacting in threatening a small parody clothing manufacturer run by an 18-year-old student creating clothing under the "South Butt" brand name. At the time, we were amused by the boy's lawyer noting:

"I did try to explain with a great deal of candor to counsel for the North Face that the general public is aware of the difference between a face and a butt."

Well, now he may get the chance to explain that in court as well. Despite all of the publicity around those original threats, which resulted in many people trashing North Face for threatening this parody operation, North Face has apparently decided to still move forward with a lawsuit against the kid (thanks Jackie). Apparently, North Face has no sense of humor whatsoever. It's really amazing that no one at North Face paid much attention to what was being said online about the company even in bringing the threat of a lawsuit. Now that it's actually filed, the backlash may be an even bigger deal. While it is true that companies need to police misuses of their trademark, this was an opportunity for North Face to act cool about it (and, hell, why not just grant the kid a license). It would have made them look cool. Instead, they look like big corporate bullies, beating up on a kid who was having fun selling a parody line of clothing.

Filed Under: clothing, parody, south butt, trademark
Companies: north face, south butt

Glenn Beck Not Allowed To Rape And Murder An Internet Meme

from the nice-try dept

Back in September, we wrote about Glenn Beck's misguided attempt to gain control over the domain name used as part of an internet meme that is critical of Glenn Beck, GlennBeckRapedAndMurderedAYoungGirlIn1990.com (it's a dead site now, keep reading). If you're unfamiliar with the meme, it's mocking a favorite tactic of various cable news talk show hosts, to "ask questions" that are accusatory in nature, whether or not there's any substance to back them up. Glenn Beck didn't accuse the site of defamation or anything, but filed a domain name complaint, saying that it violated his trademark. As we noted at the time, the trademark claim was really questionable -- and, of course, only served to draw more attention to the site and the internet meme.

The site brought on lawyer Marc Randazza who filed one of the most brilliant responses (pdf) to a legal threat that you'll ever see. It's quite amusing. Randazza takes the old "moron in a hurry" test up one level, using the "abject imbecile" test. And then there was this:

We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent's website wondering "where did all the race baiting content go?" We are here because Mr. Beck wants Respondent's website shut down. He wants it shut down because Respondent's website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck's very rhetorical style. Beck's skin is too thin to take the criticism, so he wants the site down.

Apparently, Randazza's letter worked wonders. The WIPO Arbitration Panel has rejected the attempt to take the domain, saying that it was a legitimate use of Beck's name:

In the present context, this Panel considers that if Internet users view the disputed domain name in combination with a visit to Respondent's website, the "total effect" is that of political commentary by Respondent, capable of protection as political speech by the First Amendment under the Hustler Magazine standard. Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant's mark under the Policy.

Either way, now that the site's owner has prevailed, he apparently feels he has made his point, and has agreed to voluntarily hand over the domain (pdf), along with an explanation in the First Amendment and how not to respond to internet memes:

It bears observing that by bringing the WIPO complaint, you took what was merely one small critique meme, in a sea of internet memes, and turned it into a super-meme. Then, in pressing forward (by not withdrawing the complaint and instead filing additional briefs), you turned the super-meme into an object lesson in First Amendment principles.

It also bears noting, in this matter and for the future, that you are entirely in control of whether or not you are the subject of this particular kind of criticism. I chose to criticize you using the well-tested method of satire because of its effectiveness. But, humor aside, your rhetorical style is no laughing matter. In this context of this WIPO case, you denigrated the letter of First Amendment law. In the context of your television show and your notoriety, you routinely and shamelessly denigrate the spirit of the First Amendment....

Filed Under: domain name dispute, glenn beck, parody, trademark

Mattel Now Using Song In Commercial... Which It Once Sued Over Copyright Infringement

from the change-of-heart? dept

Back in 1997, the band Aqua released a song called "Barbie Girl," that was actually somewhat critical of "Barbie doll" culture. Mattel, famous for its rather aggressive intellectual property stance, wasted little time in suing the band, claiming the song infringed on the company's rights. In 2002, everyone's favorite appeals court judge (seriously, the guy never fails to entertain) Alex Kozinski told Mattel too bad, parody songs are a part of what you get for being a cultural icon -- and included the classic line: "The parties are advised to chill."

It took seven years since that decision, but apparently Mattel had decided to heed Judge Kozinski's suggestion. Reader Sallo alerts us to the news that Mattel has actually licensed the song for a commercial -- though, they "adjusted" some of the lyrics to make it a little more pro-Barbie, rather than mocking-Barbie. Still, that's quite a jump: from suing the band for infringement to actually licensing and using the song in just a few years.

Filed Under: alex kozinski, aqua, barbie, commercials, copyright, parody, songs
Companies: mattel

Chamber Of Commerce Uses DMCA Claim Against Yes Men Prank Site

from the this-won't-end-well dept

There was a lot of news a few days back when notorious pranksters, Yes Men, set up a fake press conference pretending to be the US Chamber of Commerce, announcing that it had changed its controversial stance on climate change -- which had recently driven some large companies, including PG&E and Apple, to leave the CoC. The fake press conference, along with a fake website and fake press release, apparently fooled some in the media -- including Reuters -- until someone from the real Chamber of Commerce burst into the room and confronted the pranksters. The video is great: Part of the hoax was a fake website at www.chamber-of-commerce.us, and apparently the real Chamber of Commerce has sent a DMCA takedown on the site. The EFF is responding in support of Yes Men, saying that the site is a parody, which is protected fair use. While I think that the Chamber of Commerce is pretty dumb to issue the takedown -- only giving the Yes Men more attention -- I'm not sure that the parody defense will stick here. While the site is for the purpose of criticism, the site is most certainly not an obvious parody. It's designed to look real. Thus, the bigger issue may actually be trademark infringement, not copyright infringement, as the site could certainly confuse users, but there are other ways to deal with such things that don't involve a DMCA takedown.

Filed Under: copyright, dmca, parody, prank, yes men
Companies: chamber of commerce, eff, yes men

North Face Goes After South Butt Over Trademark Infringement

from the morons-in-a-hurry-in-heavy-fleeces dept

Another day, another story of a company reacting overly aggressively with a trademark infringement claim. North Face, the well known clothing company, apparently is not at all pleased with a student who created a parody line of clothing called "South Butt." The lawyer representing the student had a great quote:

"I did try to explain with a great deal of candor to counsel for the North Face that the general public is aware of the difference between a face and a butt."

And, indeed, that's the central question in most trademark lawsuits. Are the customers confused into thinking that they're buying one product, rather than the other. It would be pretty difficult for North Face to claim with a straight face that those buying South Butt clothing don't realize it's a different company...

Filed Under: clothing, moron in a hurry, parody, trademark
Companies: north face, south butt