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AmEx vs. rec.humor.funny
An anonymous reader writes "I worried that Brad Templeton's humorous reply in rec.humour.funny to the MasterCard threat might put an end to my daily read. I never heard the outcome, but since the column continues and he is using the same response to a suit from American Express, it must have been OK. This guy has more b*lls than I."
link1
link2
Mastercard threatens rec.humor.funny over satire
i ne .html
bt@templetons.com (Brad Templeton)
http://www.templetons.com/brad
(topical, chuckle, true)
Two years ago, rec.humor.funny published a sick satire of the Mastercard "Priceless" ads (There are some things money can't buy, for everything else there's Mastercard) based around the Columbine tragedy. I won't repeat it here, since it was pretty sick and offensive, though you can find it on the web site at:
http://www.netfunny.com/rhf/jokes/99/Apr/columb
Today we received a "cease and desist" letter from Mastercard's lawyers demanding that the parody be removed from our web site, falsely claiming it violates their trademarks and copyrights, in spite of the well established rules protecting satire and parody from such attacks.
The letter can be found at
http://www.netfunny.com/rhf/price.html
Here, however, is my response...
Web site hosting for anybody: $10/month and up
Threatening letters to people who satirize you, hoping
they won't know the law: $500
Reputation as giant corporation required to intimidate
small publishers: $billions
Supreme court decisions protecting parody and
satire from accusations of copyright and
trademark infringement... Priceless
There are some rights money can't buy. For everything else, there's Mastercard's lawyers.
============
April 13, 2004
American Express threatens me over joke on web site
On my rec.humor.funny web site, I maintain the newsgroup archives, including this 13 year old joke entitled American Expressway.
Today I got one of those bullying "cease and desist" letters from American Express's law firm, ordering me to take down the joke for trademark infringement. Here's the text of the cease and desist
Do these guys know who they are trying to bully? I guess not, here's my response to them:
You can "Screw More" with an American Express Lawyer
Do you know me?
I built a famous company with a famous name, and then satirists made fun of me by taking advantage of the constitutional protections afforded parody when it comes to trademark law?
That's why I retained Leydig, Voit & Mayer, Ltd, the "American Express Lawyers." Should you ever feel your reputation lost or stolen by free speech and satire, just one call gets LVM to write a threatening cease and desist letter -- usually on the same day -- citing all sorts of important sounding laws but ignoring the realities of parody. Most innocent web sites will cave in, not knowing their rights. LVM will pretend it has never read cases like L.L. Bean, Inc. v. High Society and dozens of others. There's no preset limit on the number of people you can threaten, so you can bully as much as you wish.
After all, Being Giant and Intimidating has its Privileges.
American Express Lawyers: Don't leave your home page without them.
For more examples of such games, check out our joint project with the Berkman center to document them: Chilling Effects Clearinghouse. And yes, Mastercard pulled the same stunt several years ago.
Posted by Brad at April 13, 2004 03:17 PM | TrackBack
Word Mark PRICELESS
Goods and Services IC 036. US 100 101 102. G & S: Financial services, namely, providing credit card, debit card, charge card and stored value smart card services, prepaid telephone calling card services, cash disbursement, and transaction authorization and settlement services. FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75658792
Filing Date March 11, 1999
Current Filing Basis 1A
Original Filing Basis 1A
Published for Opposition November 30, 1999
Registration Number 2370508
Registration Date July 25, 2000
Owner (REGISTRANT) MASTERCARD INTERNATIONAL INCORPORATED CORPORATION DELAWARE 2000 Purchase Street Purchase NEW YORK 105772509
Attorney of Record COLM J DOBBYN
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
Go not unto/. for advice, for you will be told both yea and nay (but have nothing to do with the question)
In order for speech to be "slander", it must be untrue. Since parodies don't purport to be truth, they are not covered.
Oh, and you are really talking about libel, which is written. Slander is verbal.
Please get your terminology straight before talking out of your ass.
"As God is my witness, I thought turkeys could fly." A. Carlson
It's the cost of the process itself. For individuals It doesn't really matter whether you'll win or not. The process itself is so long, slow and expensive that it'll bankrupt you.
Government of the people, by corporate executives, for corporate profits.
which is somewhat unlikely
Back when Fox News tried to C&D Al Franken's book, I assumed, like everybody else in the world, that Fox's lawyers were actually graduates of law schools that teach things like that, but we were all wrong. Fox, being one of the largest media conglomerates in the world, evidently has a legal staff who all got their law degrees at Joe's Garage and Lawer Stuff Skool. You should hear Al Franken's own description of what happened when they went to court - the judge literally laughed when he told that not only don't they have a case, but if they persist they're very likely to find out that "Fair and Balanced" isn't trademarkable.
The next Cmdr Taco duplicate will be ready soon, but subscribers can beat the rush and see it early!
As the Supreme Court majority opinion in "2 Live Crew vs. Rose-Acuff Music" said:
"How perfectly Goddamn delightful it all is, to be sure" Charles Crumb
The MC joke was tasteless, and i can see MC execs wanting to kill the joke, as it simply isn't funny. The Amex joke below seems almost complimentary, as it implies that having the AmEx card gives you special privilages. I suppose that if a popular celebrity gave them a free endorsement, they would issue a cease-and-desist letter. No wonder AmEx is the card chosen by the select few who don't want their card to be accepted in many stores.
You are invited to become a member of the American Expressway, one of the newest and most innovative road systems in America. There are many advantages to the American Expressway over the standard tollways, parkways, highways and freeways but by far the biggest advantage is:
No Preset Speed Limit!!!!!!!!!!!!!!!!!!!!!!
Instead your personal speed limit is determined by your vehicle, your personal resourcefulness and your past speeding patterns. When you enter the expressway your personal id number is transmitted to Central Control to tabulate your tolls and record your initial speed (all AE members may travel at 55 with no restrictions). If you decide to pursue a greater speed then an authorization will be sent to Central Control and our highly specialized, non deterministic and little understood AI algorithm will decide if you are approved for your new speed. If you are not then a Service Technician (formally known as a State Trooper) may stop you to ask a few questions to verify that you were capable of handling your new limit (Do you increase throttle to induce oversteer in a decreasing radius turn?), that you have adequate resources (Is that a Crosley Wombat V16?) and that you are not too far out of your previous speeding pattern (Have you ever driven at 180 mph before?).
Membership has it's Privileges
To apply for membership call 1 800 HAUL ASS
i can't read the linked story now b/c it's slashdotted...
but, there's an interesting wrinkle in the protection of satires: there was a case in the nineties (an o.j. simpson parody in the form of 'cat in the hat'). the case hinged on the fact that satire only lets you use the work you are parodying. i.e., you can't use one work to parody something else.
now, parodying the mastercard stuff is probably ok, since it's the stupid, touchy-feely nature of the ads that's being parodied. but it's important to know that satire isn't a magic wand that lets you do anything you want.
-esme
The MasterCard joke was, yes, but the AmEx wasn't. See, it's two links up there... :*)
What is it exactly about this message that makes it relevant now?
The fact that AmEx sent a similar letter April 13, 2004.
Hustler Magazine, Inc. et al. v. Jerry Falwell
http://www.bc.edu/bc_org/avp/cas/comm/free_speec h/ hustler.html
No. 86-1278
SUPREME COURT OF THE UNITED STATES
485 U.S. 46
Argued December 2, 1987
Decided February 24, 1988
Syllabus
Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement "parody" which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. The jury found against respondent on the libel claim, specifically finding that the parody could not "reasonably be understood as describing actual facts . . . or events," but ruled in his favor on the emotional distress claim, stating that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed, rejecting petitioners' contention that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U. S. 254, must be met before respondent can recover for emotional distress. Rejecting as irrelevant the contention that, because the jury found that the parody did not describe actual facts, the ad was an opinion protected by the First Amendment to the Federal Constitution, the court ruled that the issue was whether the ad's publication was sufficiently outrageous to constitute intentional infliction of emotional distress.
Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted. "Outrageousness" [47] in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Pp. 50-57.
797 F. 2d 1270, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, AND SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 57. KENNEDY, J., took no part in the consideration or decision of the case.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of [48] privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation cl
---
IMHO, of course.
May the SOURCE be with you.
I don't read ACs: If a post isn't worth so much as a nom de plume to its author then I wont bother either.
As I pointed out elsewhere Brad is well aware of his rights (early online publisher, author of "10 Big Myths about copyright explained", Chairman of the Board of the EFF ), rather folks need to be more aware of their own rights.
Also for all the lip service paid to EFF on /. it's pretty telling that this story was up for an hour, your posting was +5, and nobody here had a clue as to who Brad is...
I don't read ACs: If a post isn't worth so much as a nom de plume to its author then I wont bother either.
Everybody reading this thread should contact AmEx and let them know they'll be cutting up their card(s), or never getting one.
o ne: 914.249.5826
. com
I also suggest calling/emailing everyone you can at MasterCard for their consistent badgering of parodies - most recently (and notably) Ralph Nader's ad.
Here's some MC contact info. Anybody got some for AmEx?
Tell 'em you don't appreciate companies that attempt, over and over again, to bully others into compliance with THEIR wishes, against the letter and spirit of the law, and you won't stand for
it. Call 'em again and again. They like hearing from irate consumers.
Some folks are claiming this is "old news", but it's been going on for some time, and resurfaces every once in a while - send these folks a message NOW, and maybe they'll finally figure it out.
MasterCard Executive e-mail addresses:
Sharon Gamsin Vice President, Global Communications
sgamsin@mastercard.com
Phone: 914.249.5622
Chris Monteiro Vice President, Global Marketing Communications
chris_monteiro@mastercard.com
Ph
Ayde Ayala Global Communications Coordinator
ayde_ayala@mastercard.com
Phone: 914.249.5388
Marc Levy Director, Global Marketing Communications
marc_levy@mastercard.com
Phone: 914.249.3233
PR/Media Inquiries:
Christina Costa
Ph: +1 914 249 4606
Email: christina costa@mastercard.com
North America:
Michael Madden
Tel: +1 914 249 1354
Email: Michael Madden@mastercard.com
(Media Contact only)
MasterCard International
Christina Costa
1-914-249-4606
christina_costa@mastercard
Some have asked why I respond to them with more humour instead of a more formal response, and whether they have to do this to protect their trademark.
/.ed. My pages have been /.ed before and handled it fine but for some reason not today. The server is up and furiously spitting out pages but obviously not fast enough.)
As some of you know, I am with the EFF, and so I don't lack for legal advice on cyberspace free speech issues. That's not the question.
This letter is an example of a new phenomenon I call "spammigation." Automated bulk legal action. I suspect Amex told their lawyers to just threaten everybody using an Amex trademark on a web page without authorization. Or perhaps the lawyers convinced Amex this was a good idea. In worse cases, DirecTV sues everybody who bought a smart card writer, and the RIAA sues hundreds of Kazaa users at once.
They send threats or sue because they know they are the big guy and the little guy will almost always cave in. It's easy and cheap. For a typical web site owner, it's too expensive to even figure out if you are within your rights, certainly too expensive to get a lawyer. So people just take their web sites down.
Every so often they get somebody like me who knows his rights, and I predict they have no desire to fight me once they see who I am and that I can defend my rights. So I'm not in much danger personally. The people in danger are the other people who got this letter and didn't know the truth.
So I make fun of them to ridicule them, to point out what they are doing, and to inform people that they don't have to give in to impressive sounding threats on their parodies. By doing it in an amusing way, people pay more attention to it.
They do need to defend their mark, but parodies are not infringing so they don't need to send C&D letters on those. They do it because they are lazy, or because they want to be very sweeping, or perhaps because the lawyers want to bill the client for more hours, who knows? It's a foolish strategy, but they do it.
And another reason for the publicity is that it teaches them to be more careful, and not to just threaten willy-nilly. I want it to come back and bite them. Last time, Mastercard got people cutting up their mastercards, and the law firm doesn't want the client calling to say "what the hell did you do, customers are cancelling accounts!"
So write Amex if you don't like them bullying. Tell them and the lawyers there is a cost to bullying in the modern age.
(If you don't get
Has it been over a year since you last donated to the Electronic Frontier Foundation