I like Glenn Reynolds. I read him every day. But on certain legal subjects near to my heart, he completely screws up the law. (Last time it was on RICO’s application to the RIAA.)
My beef with Glenn follows. Oh, and as a general rule: do not assume that I, Glenn Reynolds, Eugene Volokh, Professor Bainbridge, or any other self-professed legal professional, knows what the hell they’re talking about when they’re talkin’ law.
Here’s an excerpt of Glenn’s post:
THE NEW YORK TIMES is threatening a blogger for putting up this parody NYT corrections page. A Times lawyer writes The National Debate:
Your actions are deliberately designed to confuse people and are clearly illegal.
Both statements seem false to me. It’s pretty obviously a parody . . . . To me this looks as dumb and self-defeating as Fox News’s suit against Al Franken. And my advice to the New York Times is: strengthen your “likelihood of confusion” case by actually publishing a page like this yourselves. It’s past time.
Glenn appears to suggest that parody would protect the blogger from a trademark infringement claim.
Here’s the offending page. It looks quite a bit like a NY Times page, no? (Unlike Al Franken’s book.) Here‘s (apparently) a copy of the threatening letter from the NY Time’s lawyer.
Without passing judgment on the merits of the NY Time’s case against the blogger (it probably ain’t great), note the following problems with Glenn’s analysis of an NY Times trademark claim against the blogger:
1. The primary claim is not trademark infringement (as Glenn implies); it’s copyright infringement. Copyright infringement does not use a likelihood of confusion test.
2. Nor is the likelihood of confusion test relevant to the NY Time’s trademark dilution claim against the blogger (such as under Section 43(c) of the Lanham Act). Here, the NY Times has a pretty clear dilution by tarnishment claim (again, it may not succeed on the merits, but it passes the red-face test).*
3. The trademark infringement claim is not nearly as bad as Glenn thinks. (It’s not great, though. If all I had was trademark infringement, I probably wouldn’t advise bringing a claim. ‘Course, here, the NY Times has potential copyright infringement and trademark dilution claims . . . . )
4. Parody is not an absolute defense against any of the foregoing.
/rant off.
von
*Indeed, nobody confused the porn film “Debbie Does Dallas” with the Dallas Cowboy Cheerleaders, nor did anyone reasonably believe that the Dallas Cowboy Cheerleaders approved the film (which featured, I’m told, a sexual romp by a woman wearing a Dallas Cowboy Cheerleader’s outfit). Yet the Dallas Cowboys won a dilution by tarnishment suit against the makers of the film . . . .
So, von, in what way did the blogger(s) in question infringe upon the NYT copyright? Any ideas?
And, in Glenn’s defense, they did cite trademark infringement. And of course he didn’t address that. So, good catch on the copyright bit, if they in fact have some sort of case.
Oops. There should be some mention of how Glenn didn’t address copyright infringement in the second paragraph. Use your imagination.
That’s a very impressive parody.
So, von, in what way did the blogger(s) in question infringe upon the NYT copyright? Any ideas?
You could claim copyright in the look and verbiage of the corrections page; the author of the parody has also copied actual flash animation ads from the real page; the page contains potentially copyrighted NY services (e.g., the NY Times news tracker) and live links to those NY Times services; etc., etc.
Really, check out the “parody”. The Times is on much better ground than Glenn thinks.
And don’t forget the trademark dilution claim. It’s separate and distinct from the infringement claim, and uses a different analysis. (Another claim Glenn misses.)
That’s much closer to the parody CNN page proclaiming oral sex cures breast cancer than the Franken book. Christ, it even uses NYT ads that the site certainly didn’t solicit and images stored on NYT servers. It doesn’t come within the ballpark of censorship to shut that page down as-is.
“look and verbiage” should be “look and format”. Sorry for the lack of clarity.
I would consider the “Debbie” an unfortunate precedent.
1) The uniform may not have been intrinsic or necessary to the purposes of the movie.
2) It was not parody or satire.
3) I would almost assume a bias in the jury against the defendant, by nature of the material.
But I am no lawyer. And I really count on you lawyers to disagree with vigor so that I may take sides or have demonstrated with certainty that you don’t know what you are talking about. Peer review is neat. Thank you.
“You could claim copyright in the look and verbiage of the corrections page”
More appropriate, I think, would be a claim on the html source that defines that layout. It’s a pretty good guess that it was simply copied wholesale from the NYT site and then republished on his site.
Thanks for the thenationaldebate.com link, but the way. That’s good stuff.
More appropriate, I think, would be a claim on the html source that defines that layout.
Ahh, excellent point, Sidereal. Completely missed that one. If he copied the html (and to get that look, maybe he had to), it’s a pretty cut-and-dried case of copyright infringement.
Oh, in more evidence that I’m going insane, I think that I confused the Debbie Does Dallas case with the Candyland case. Both involved pornographic films using a trademark (Dallas Cowboy Cheerleders in one; Hasbro’s Candyland game in the other). But I think only the Candyland case was a straight-up dilution claim; DDD, I now think may have just been infringement.
I thought the whole “look and feel” claim got tossed out with Apple’s claims against Microsoft. That should go to show you how well I think I understand the law, or even care. Thanks for the explanation. I’m thinking I might have to now change my font to one no one else uses. Writing in Dingbats, though, isn’t very satisfying.
I find writing when dingbats is very satisfying.
I had suspected that about you, but it’s nice to have a confirmation ;p
Slart, that was for von‘s benefit, not yours…
Oh, dang. Retracted, then.
Bob — Sorry to have missed you . . .
1) The uniform may not have been intrinsic or necessary to the purposes of the movie.
Doesn’t really factor into the trademark/copyright analysis. (At least as I understand you.)
2) It was not parody or satire.
Probably true at a base level (no pun intended), but the argument was raised.
3) I would almost assume a bias in the jury against the defendant, by nature of the material.
I’m not sure if it went to a jury, but, if so, I completely agree.
I thought the whole “look and feel” claim got tossed out with Apple’s claims against Microsoft.
Well, it’s true that copyright doesn’t protect an idea — only a particular expression of an idea. But you can get copyright protection for a nonfunctional design or a (again, nonfunctional) arrangement of data. (You can also potentially get patent protection in the form of a design patent, but that raises a bunch of other issues.)
von
Slart – I expected you already knew what I was talking about – von seems a bit too sober to indulge in a good bout of wingbattery. But maybe one day he’ll pleasantly surprise us.
What was it Paul said to the churches – you gotta be a little nuts?
(which featured, I’m told, a sexual romp by a woman wearing a Dallas Cowboy Cheerleader’s outfit)
Least plausible words you’ve ever written, von 😉
You’ve seen http://www.whitehouse.org I’m assuming.
Is that parody and therefore immune or is the Whitehouse webpage not a registered copyright or trademark?