Posted on 06/27/2003 10:46:06 PM PDT by Dont Mention the War
"We distort. You comply"
Even in a down economy, there are some business models that still work -- selling T-shirts comparing Fox News commentator Bill O'Reilly to Hitler, for example.
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By Katharine Mieszkowski
June 26, 2003 | Nothing boosts lefty T-shirt sales like an officious, bullying cease-and-desist letter from Fox News.
Agitproperties.com in Austin, Texas, sells "Faux News Channel" T-shirts that mock the Fox logo with the slogan "We distort. You comply." The company is an equal-opportunity network mocker -- it also sells "Pentagon News Network" T-shirts parodying the CNN logo.
But those two offerings are positively subtle compared to the T-shirt that puts a Hitler Youth spin on Fox fulminator Bill O'Reilly. A strapping young blond man brandishing a flag emblazoned with the words "news channel" is bracketed with the slogan "Fair and Balanced" and the title "O'Reilly Youth."
Lest anyone start thinking Bill O'Reilly has actually begun recruiting for his own fascist youth brigade, the site displays a prominent disclaimer right on the home page: "This Web site and the merchandise sold herein are parodies and as such are political satire protected by the First Amendment of the Constitution of the United States of America. Agitproperties.com is not connected with, approved or endorsed by Fox News Network LLC ..." and so on.
But Fox isn't convinced.
In a letter dated June 19, 2003, Christopher Silvestri, senior counsel for the network, accused Agitproperties.com of trademark infringement and ordered the company to stop selling the shirts. "Furthermore, the T-shirt 'O'Reilly Youth tee,' in addition to the infringements described herein, shows incredibly poor taste on your part, is highly offensive and clearly demonstrates your bad faith use of the Fox Copyrights and Trademarks," Silvestri wrote.
The guys at Agitproperties think that's pretty funny: "Now isn't that a hoot: to be accused of 'incredibly poor taste' by a representative of the network responsible for such benchmarks of good taste such as 'Temptation Island 3,' 'Joe Millionaire' and 'Stupid Behavior Caught on Tape,'" they wrote in a press release detailing the contretemps.
Richard Luckett, 46, a graphic designer in Austin -- "deep in enemy territory," he says -- started selling the shirts on street corners with his two partners, Brad First, a nightclub manager, and Rick Elms, an Austin bartender, at antiwar rallies in Washington and San Francisco earlier this year.
On their Web site, they feature links to news stories from around the world, along with incitements to buy their liberal propaganda. "I wanted to be an antidote to the mainstream U.S. media," says Luckett, who spent 20 years on the road as a merchandiser for bands like Duran Duran and Stevie Ray Vaughan.
But as Baghdad fell, so did T-shirt sales.
"After the so-called victory, all of a sudden our traffic and our sales just went to nothing. We were sitting around wondering what we should do and we got this cease-and-desist order from Fox," says Luckett.
You'd think the lawyers at Fox News were moonlighting for the marketing department of agitproperties.com.
As word of the cease-and-desist letter spread around liberal blogs, traffic to the site went from 300 people a day to 41,000. "I went from having five mentions on Google to six pages in 24 hours," says Luckett, who says that he's taken $3,000 worth of T-shirt orders in the last 24 hours.
The site has attracted so much traffic that by Thursday morning it was shut down temporarily for consuming too much bandwidth. The site was back up by Thursday afternoon.
Agitproperties.com hasn't formally responded to Fox's letter yet, but plans to. "Fox expected a tiny little company in Austin, Texas, to just roll over. This is definitely without a doubt a First Amendment issue. Americans should be free to speak their minds," says Luckett.
Robert Zimmerman, spokesperson for Fox News said only: "We don't comment on legal matters."
If Fox does decide to defend its copyright against the likes of the O'Reilly youth T-shirt in court, could the network have a case? Although the T-shirt peddlers say that they're just trying to make enough money from the shirts to keep their tiny alternative media site up and running, could they be prosecuted for profiting from Fox's trademark?
"The question is not whether they're selling the shirts for profit or not," says Fred Von Lohmann, senior staff attorney for the Electronic Frontier Foundation. "The real question is: Are people going to be confused? If you look at a T-shirt and it's clearly lampooning the trademark, no one is going to be confused. Then, the First Amendment gives you more protection.
"Trademark law is intended to protect the public from confusion," he says. "It's not intended to protect Bill O'Reilly from offensive comments about his program."
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About the writer |
And every single one of those sneering, morally superior liberals is dead wrong. Parodies are usually protected speech, but not when the "parody" consists of nothing more than an altered trademark being sold for profit. In such cases it's nothing more than a standard-issue trademark violation.
(The legal reasoning here is obvious to those of us without a hatred of Fox News who are able to step back and look at the matter objectively. You couldn't legally take, say, a Pepsi logo, slap it on a t-shirt, and sell it for money just because you changed the "i" to an "l". You'd just be stealing from Pepsi, period.)
And that's precisely what Agitproperties is doing here; just selling, for profit, a t-shirt with a barely-altered Fox News logo on it. (They're selling two Fox shirts; let's deal with this more obvious one first.) All they're doing is: 1) Taking the exact Fox News Channel logo and merely changing the "o" in "Fox" to an "au", and 2) Altering Fox's "We Report, You Decide" motto to the lame, unoriginal ripoff "We distort, You comply." These two seemingly minor points are actually quite important, legally speaking; see below. Here's a photo of the shirt in question:
Now, why does it matter that the two changes here are so subtle? Because in order for a parody to be legally protected, one of the conditions that must be met is that it must be "clever." And neither of these two alterations pass that test. The left has been referring to Fox as "Faux News" for years, and the ripoff tagline "We distort, You comply" has references on Google that are at least a year and a half old (and possibly much older; I didn't bother to dig back very far). The t-shirt is lame and unoriginal, and yes, legally that counts very much in Fox's favor.
However, there is a second, completely unrelated reason why this t-shirt is not legally-protected speech: A law that was passed in the mid-1990s called the Federal Trademark Dilution Act. It protects registered trademarks from violation by other businesses. Agitproperties is a business, and it is violating Fox News's trademark. It really is that simple.
And no, the argument that it's supposedly a political statement doesn't hold up. The courts give "greater latitude" for parodies - in other words, choose the First Amendment over trademark rights - when "expression, and not commercial exploitation of another's trademark is the primary intent, and in which there is a need to evoke the original work being parodied." Cliffs Notes, Inc. v. Bantam Doubledav Dell Publishing Group, Inc., 886 F.2d at 495. It is beyond obvious that Agitproperties is not out to "express" itself, but instead to sell t-shirts, a blatantly commercial activity.
It's rather scary how many lawyers, such as Mr. Von Lohmann who is quoted in the above article, either do not understand this issue or are simply willing to - dare I say it - distort in order to get across their desired political message. Von Lohmann said, "The question is not whether they're selling the shirts for profit or not." Well, yes, Fred, it is, to a large extent.
Bottom line: Fox will win this legal matter, either in court or via the usual route, an out-of-court settlement where both sides agree never to discuss the details but will most likely entail Agitproperties handing over most, if not all, of their profits from sales of the Faux News t-shirt and removing it from sale.
And I bet CNN has its cease-and-desist letter out to Agitproperties within seven days. Why? Because not only did Fox have every right to sic their lawyers on Agitproperties, they were LEGALLY REQUIRED to do so. Trademark law demands that the trademark owner challenge every single instance of trademark violation it is made aware of, or they risk losing their rights to the trademark. Any first-year law student knows this. Fox didn't even have a choice but to send out a cease-and-desist order. And neither will CNN.
Now, the second t-shirt, seen above in the graphic accompanying the original article, is a bit tougher to rule on. In general, the graphic appears to be protected speech; public figures such as Bill O'Reilly have little protection against parody; the risk of being made fun of comes with the territory. But again, the FNC logo plays a major role in the artwork. You can only see the words "News Channel," not "Fox," but anyone familiar with the FNC logo will recognize it instantly, and recognize that it has not been altered in any way whatsoever, merely cropped. Would that, along with the mention of O'Reilly's name (who is inextricably tied in with Fox News), be enough to fall under the protection of the Federal Trademark Dilution Act? Could O'Reilly himself sue since, again, the main point of the t-shirt is simply to use O'Reilly's name to make money, instead of making a political statement? I don't have the answers to those questions. But my guess is that Agitproperties is pushing the envelope on this one, and if Fox, O'Reilly or both sue them over the shirt, Fox and/or O'Reilly stand a reasonable chance of winning.
Lawyers? We got LAWYERS on this forum?!?!?
Somebody tell the moderators!
One wonders about the extent to which the general liberal tendencies of judges will influence their judgments in a case such as this. My experience is that most judges swim in a culture of elites whose approval they seek and value, thus tempting them to impose their personal preferences on the public at large. It ought to be interesting to see how this one turns out. Keep us posted.
Is this supposed to be a serious response? Those rights are not absolute, and you know it. You may not shout "Fire!" in a crowded theater. You may not commit libel. You may not "petition the government" by trying to kill the politicians who vote for bills you don't like. You may not "peacably assemble" in the middle of a freeway during rush hour and disrupt the freedom of thousands upon thousands of others in the process.
Your post just cannot be taken as a meaningful argument.
My article says nothing about offense. I do not find personally find the t-shirts offensive. In fact, I find the O'Reilly shirt quite funny, and would probably consider purchasing one if the money wasn't going to left-wingers, who I would rather not support. The entire article is purely about the legalities of the case. Any inferences about "offense" are purely creations of your own warped mind.
Get a life.
I'd rather remain out here in reality where people can discuss issues without resorting to pathetic kneejerk personal attacks that have nothing to do with the post at hand. Thanks anyway.
These folks, agree with them or not, are engaging in political speech. That there T-Shirts are for sale is not fundamentally different from books, magazines, or newspapers which contain political statements being for sale.
But I have a question for you. Would your opinions be the same if the T-Shirts were attacking the Clinton News Network in the same fashion?
Judge Changes Channels On Spike TV Case
The saga of Spike vs. Spike continues: New York State Supreme Court judge Walter Tolub on Monday proposed a July 7 non-jury trial exclusively to weigh whether average viewers would identify Spike TV, the planned new name for Viacom's TNN, with director Spike Lee, who contends they would and has sued to stop use of the name. Viacom immediately agreed to the trial, and Lee has until today to do so. If he doesn't, a jury trial would be held later this summer. (USA TODAY)
Spike Lee Must Post $2.5M Bond In Lawsuit
NEW YORK (AP) - Spike Lee, who's suing to stop Viacom International from renaming its TNN cable channel as "Spike TV," must post a $2.5 million bond to cover the media giant's costs if it wins the case, a Manhattan judge said.
Lee had posted a $500,000 bond June 13 after winning a temporary injunction against Viacom's plan to rename TNN. State Supreme Court Justice Walter Tolub gave him until Thursday to post the additional $2 million.
The 46-year-old director of films including Malcolm X and Do the Right Thing got the injunction after claiming that Viacom, owner of the CBS network, MTV and Showtime, was renaming TNN in a deliberate attempt to hijack his name, image and reputation.
On Tuesday, the judge revised the amount of Lee's bond after hearing testimony from TNN vice president Kevin Kay that the network had lost millions of dollars since the injunction and could lose millions more before the case goes to trial Aug. 18.
Luckett is, definitely without a doubt, not the brightest pup in the litter. He doesn't seem to understand the concept of trademark infringement, which has nothing to do with free speech rights. Hopefully a judge will be nice enough to explain it to him in a court of law.
Yes, they are fundamentally different, for a number of reasons, but one of the main ones is that parody political speech in publications consists mainly of well-established "fair use" exceptions to copyright law. In Campbell v. Acuff-Rose, SCOTUS Justice David Souter wrote that "like less ostensibly humorous forms of criticism, [parody] can provide social benefit by shedding light on an earlier work, and, in the process, creating a new one." Merely screwing with a trademark does not involve copyright law one bit, does not "shed light on an earlier [copyrighted] work and create a new one in the process," and thus is not covered under "fair use" laws.
But I have a question for you. Would your opinions be the same if the T-Shirts were attacking the Clinton News Network in the same fashion?
Sorry, PL, but this suggests to me that you haven't actually read the article or my response - or at least haven't read them very closely - because both the article and my response make it quite clear this company IS offering an anti-CNN t-shirt. The article mentions the CNN shirt in just its third sentence.
And as I already indicated in my original response, my feelings are exactly the same regarding this shirt. CNN will be legally forced to send out a cease-and-desist order to protect their trademark, whether they want to or not. I have no opinion on the CNN shirt itself other than to say that it's deriviative and lame, and you'd think they could come up with something funnier.
Well, it is a trademark suit of sorts, though it has no political overtones or parody implications. I think it's just a matter of Spike Lee being egotistical enough to think that he has a permanent right to use the name "Spike" in any form whatsoever, which has come as quite a surprise to the children of Spike Milligan and to director Spike Jonze.
I can't imagine Lee winning that case in the end. There's not a whole lot of crossover between fans of Spike Lee movies and fans of the WWE.
Sorry, PL, but this suggests to me that you haven't actually read the article or my response - or at least haven't read them very closely
And i suggest that your reply indicates that it is you who has either failed to read closely, or are unable to distinquish between Clinton and the Pentagon. Now please answer the question.
Your question was not "Would your opinions be the same if the T-shirts were attacking the Cable News Network by using the phrase 'Clinton News Network' in the same fashion?" Your question was "Would your opinions be the same if the T-Shirts were attacking the Clinton News Network in the same fashion?" Given that half of FR routinely refers to CNN as the "Clinton News Network," nobody is going to blame me for interpreting the question as I did. But if you wish to split hairs, that's fine, I'll answer: Yes, my opinions would be the same. It would still be a derivative, unclever trademark violation, and I wouldn't blame CNN one bit for suing them.
If they wanted to print the t-shirts and give them away for free, now that might be a different ball of wax.
From PROTECTED MARKS AND PROTECTED SPEECH: ESTABLISHING THE FIRST AMENDMENT BOUNDARIES IN TRADEMARK PARODY CASES (cyberlaw.harvard.edu)
100% wrong. Stop trying to play a lawyer online, it does not suit you. You may want to finsh law school first.
Oh, "beyond obvious" well then, you must be right! Creating facts is always the easiest way to make a case.
Let's see. No facts, no supporting documentation, just personal insults. The first and only refuge of someone with nothing relevant to say.
How tiny and sad.
Regardless of the legalities of the situation (and it's generally accepted that the original Sore Loserman parody was created by FR's own Registered, for free, as a joke), it would not have been in the Gore campaign's best interest to go after anyone selling Sore Loserman merchandise because: 1) The campaign was practically over. They didn't need to protect the logo. 2) They would have looked like even bigger jerks than they already did, had they tried. 3) Suing costs money. And they needed every penny they had to spend on lawyers trying to manipulate vote counts, not go after t-shirt and button peddlers.
No. Under TRADEMARK law. You would be using a private company's intellectual property against their will in order to turn a profit without giving them a penny. That's illegal.
I'm not saying I'd be on the phone to CNN's legal department to turn you in; I don't personally care. But strictly speaking, it would be against the law.
Although I am more in the libertarian camp, it is Bill's calls for the government to "do something" about 99% of the time anymore. While I may agree with him many tmes, getting the government involed would be my last resort, where O'Reilly seems to grab that club first.
Waaaaaaaaaaaaaa...
In the hypothetical CNN T-Shirt case, do you believe that consumer confusion would exist as to whether or not they were a "CNN" product.
And these ambulance chasers need to be slapped in the side of the head. I don't care if it is right or left.
Ambulance chasers SUCK.
I think you're getting at something fairly significant here - and the resolution is not at all obvious. First off, I personally think the defendant is in the right here - the logos are clearly political in nature, and I think they should fall clearly under 1st amendment protection. Whether or not that will happen, of course, is a different question.
Now, the analogy I'd like to make is to the case that Nike is currently involved with in, I think, Oregon or California. They responded to some attack ads about their business practices with their own version of the story. The people who put out the attack ads found some error or other, and sued under a law banning false advertising, claiming that it was commercial, not political, speech. I disagree with them, again, but their case rests on the idea that a private, commercial company only engages in commercial speech.
And that seems to be at the root of this case as well. Fox is, I assume, trying to maintain that they are a commercial company, and this parody is commercial, not political, speech. Especially for a news outlet, I find this tenuous - maybe laughable. Fox and CNN regularly engage in political speech, so do a host of other companies. When they do, they deserve the protection we afford such speech. But they should also take the blows, that other people can engage in such against them.
These t-shirts are attacking Fox and CNN's political views. The original writer may not find them clever, but personally, I did. I don't agree with them, but I thought they were amusing. More, I thought they were very clearly political themselves. Thus, I think they deserve a very high degree of protection.
Drew Garrett
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