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Wal-Mart Parody Site Censored by DMCA
davidwr writes "Wal-Mart used the Digital Millenium Copyright Act to temporarily shut down a university student's parody of the Wal-Mart Foundation." The story's details are also available via BusinessWeek. From the article: "Papasian launched the Web site April 16 for an art class at Carnegie Mellon University called 'Parasitic Media.' The class teaches students about the political uses of satire in the media. He acknowledged using Wal-Mart's graphics on his Web site but said he believed he could use the images as part of a parody."
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/ hustler.html
- Just my $0.02, take with a grain of salt, your mileage may vary.
Karma burning....I mean, I hate Wal-Mart more than any other company in the world and have not been in a store in almost a year, nor will I ever set foot in one again. That being said, it's not a huge deal, is it? After RTFA, it seems that all the kid had to do was take down some of the offending images, which are copyrighted anyway. Likewise, I can't use Slashdot's logo and crap without permission. Granted, they probably wouldn't care, but not caring != legal. I might be wrong, so I'm sure someone will correct me.
Of course the student would want to draw attention to this. One person's "overblown" is another person's "needed publicity."
I'm guessing that if this went to court, it would be thrown out as this site is fairly clearly a parody site. This allows considerable freedom in copying images, ideas, logos, and so on.
Much like the Gone with the Wind publisher battling The Wind Done Gone, it can be fairly counterproductive for large corporations to try and fight these parodies. They do nothing but draw unwanted attention to their rather nasty behavior.
No... if you want to commercially MARKET a parody of a song, you must pay royalties and obtain permission. If you want to simply make a parody, and give it away - there's nothing to stop that (unless you find financial gain from that parody).
Kinetic stupidity has a new brand leader: Allen Zadr.
Parody Site: www.walmart-foundation.org
Walmart is NOT bitching about this.
That's the part they should be bitching about because people could get mislead into thinking that it's the actual WalMart site. The URL should be changed.
I can't tell you how we ALL have known since the web was invented that you don't steal other peoples graphics. Sure, there may be some grey area with parodies, but its the same thing we knew when we were just getting into making HTML.
Every week Saturday Night Live uses the exact intro graphics and theme music from other shows that they are paodying. I guess nobody told them that they can't "steal" other peopls' graphics. That's probably because they actually *can* "steal" other peoples' graphics if it's a parody.
Fair use in parody only applies if you're not using their exact graphics/trademarks. If you are you're violating their copyrights, and possibly open for libel/fraud depending on what you're attributing to the company.
I don't know why this would fall under the DMCA, other than the fact that its a website. Standard copyright/trademark law would apply.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
"Even when making a parody of a song, you must pay royalties on the original and you must obtain permission should you use any portion of the original mechanical."
No. I refer you to the US copyright act section: 107 Limitations on exclusive rights: Fair use, which states:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright."
While it does not explicitly mention parody, that is covered under criticism, comment, or news reporting. This is why John Stewart can show clips of copyrighted works on the Daily Show and not infringe.
The graphics are, granted, the hardest part to prove 'fair use' for, but there is still a fair use case to be made. That's not just my opinion, but also the opinion of the lawyers I have been in contact with.
The graphics are not being distributed by themselves as such, rather, they are part of the website which is a larger work, and in my view, markedly different from the original. That makes it a derivative work, and as such, protected as 'fair use'.
There is a lot of mistaken applications of other types of copyright law here. The big difference is I stand to make no financial gain, directly or indirectly, from this site. I don't owe royalties because I don't have profit. I don't need permission because it's fair use.
-bugg
Fair use in parody only applies if you're not using their exact graphics/trademarks.
Bullshit. Try reading section 107 of the copyright act.
If you are you're violating their copyrights
Again, pure bullshit. Use of a work for parody is *NOT* a copyright violation.
possibly open for libel/fraud depending on what you're attributing to the company
It's not fraud unless you claim that you are the entity in question, and it's only libel if the claims are false, and only in some situations (libel is more difficult to prove against public entities.)
Standard copyright/trademark law would apply.
Yes, and because it's parody, it has an exception under Section 107 - so he's protected.
Even when making a parody of a song, you must pay royalties on the original and you must obtain permission should you use any portion of the original mechanical. Coolio got all upset after Weird Al released Amish Paradise. Apparently, Al thought Coolio had given permission to parody Gangsta's Paradise, but he actually hadn't. But there wasn't really anything Coolio could do legally because it's a parody. Weird Al apologized but didn't exactly take the song off the market. He generally only does parodies if he gets permission out of respect for the artists, not because he's legally obligated to.
Warning: Apple/Nintendo fangirl. Likes her electronics cute & cuddly. May be rabid.
I am a lawyer - althought Copyright is not my area of expertise... anyway - the standard for parody is something like - is a a reasonable person likley to confuse the parody work as the work of the original. It sounds like no reasonable person would confuse this guys work as an actual wal-mart site.. But as noted above those kinds of arguments can be expensive to prove and that protection really does only apply to those who can afford to at least get the issue in fromt of a judge and ask for dismissal or summary judgment. Waht would that cost in a case like this - figure with discovery and drafting and filing fees - maybe as much as 10,000 and up. Easy to see why this college student just folded.
Legal precident sez you're wrong.
Deere & Co. v. MTD Products, Inc., 41 F.3d 39 (2d Cir. 1994).
Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir. 1979).
Libel applies whereever you attribute something in writing to someone who does not hold that belief. It is always legally actionable.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
It sounds like no reasonable person would confuse this guys work as an actual wal-mart site.
Go to his site and click on the Cease and Desist PDF. After looking at the screenshots they presented, I'd say Walmart has a pretty good case for unfair use of copyrighted material. Not to mention all the trademarks he appropriated in this stunt...
Javascript + Nintendo DSi = DSiCade
Uh, no. There is no gray - it is very much black and white.
Not quite. Remember the case with Penny Arcade and American Greetings? They made a parody of their Strawberry Shortcake in the style of an American McGee's Alice game.
IIRC, it wasn't protected as a parody since they weren't parodying Strawberry Shortcake, but using that character to parody something else (American McGee, in this case).
Where does the school board find them and why do they keep sending them to ME?
The text was flamingly obvious. I said things like (paraphrasing) "we're just undoing a very small portion of the damage we do to communities, because it promotes our image and is a great write-off."
-bugg
Deere & Co v MTD Products, Inc was a competitor modifying Deere's mark in a 'humorous' way in order to both mock and identify the competitor for commercial purposes. It was a commercial message rather than the social commentary that one generally envisions when one thinks of satirized protected marks.
... The Constitution does not, however, permit the range of the antidilution statute to encompass the unauthorized use of a trademark in a noncommercial setting such as an editorial or artistic context".
The Dallas Cowboys, Inc v Pussycat Cinema is, *again* a commercial case where "Debbie does Dallas" producers were enjoined from referring to the sports team in promotion of the film. Even trying to call that satire is a thin defense to begin with.
There are 3 tests commonly used to test the use of a trademark, however, see L.L. Bean, Inc. v. Drake Pubs., Inc., 811 F.2d 26, 31, 33 (1st Cir. 1987), where the First Circuit court protects the use of a trademark against an antidilution claim almost solely on the basis of the use being noncommercial. To quote: "The Constitution is not offended when the [Maine] antidilution statute is applied to prevent a defendant from using a trademark without permission in order to merchandise dissimilar products or services.
See also:
Yankee Pub. Inc. v. News America Pub. Inc., 809 F. Supp. 267, 279 (S.D.N.Y. 1992)
Simon & Schuster Inc. v. Dove Audio Inc. 936 F. Supp. 156, 164 n.4 (S.D.N.Y. 1996)
I don't see how the comments on libel are even relevant. The site was a parody and received a C&D only because of their use of trademarks. They did not allege libel, at least according to that story, and such a claim might also have to be evaluated in the context of political or social parody.
*Anything* is always legally actionable; that doesn't mean the cause of action is likely to prevail, and Wal-Mart was certainly unlikely to prevail in this instance.
This post is not meant to constitute legal advice; if you need advice for a specific legal situation, consult an attorney.
Your post hits the primary problem our nation has, inflation.
It is so sad that people in this country do not realize they are being ripped off. Under our current economic system, inflation screws the poor and middle classes. It is essentially a RECURRING tax on savings.
For example : try putting in the 7.00 per hour wage from 1974, then compare it to today.
$7.00 per hour in 1974 would be roughly equivalent to making $27.00 per hour today.
But it gets worse. Any money you try to save, is also worth less over time. The interest you earn on a bank account needs to make at least the level of inflation just to stay the same in terms of purchasing power.
It seems people are just plain clueless about how they are being royally screwed by the governments economic policies.
Service guarantees Citizenship! Questions Guarantee GITMO.... Amerika Uber Alles!
The DCMA has a clause that allows copyright holders to force an ISP to remove infringing content. (This letter was directed at the ISP.) All that's required to get the ISP off the hook is for the website owner to write a response saying that he feels he has a right to the materials he is publishing. The DCMA then *requires* that the ISP restore the material, as they are no longer responsible for its trafficing.
Javascript + Nintendo DSi = DSiCade
Did you actually look at the exhibits in Walmart's complaint PDF (http://atdt.nu/walmart.pdf)?
This has nothing to do with injustice. If you're going to make a parody, it has to be clear that it's a parody. I don't think the phony articles he had on his page were nearly obvious enough.
Let me put it this way: his parody didn't read like the Onion, it read like someone copying a site trying to slight and entice the original owner. Consider it before you start going on the EFF warpath about Walmart in this case.
Just clarifying, in case anyone thought I added that after the takedown notice.
-bugg
He, I used to believe that taking everything into court happened just on TV series ... guess I was WRONG.
Wasn't it in ancient rome where lawyers couldnt receive payment for their services ?
Jorge Canelhas
Are you a Retro Computing Fan ?
http://example.com/
Wal-Mart, so far, hasn't said anything at all about trademarks. The cease and desist sent to my ISP was a DMCA takedown notice, and was about copyrights. Haven't heard anything about trademarks yet. Use of copyrighted material- what they went after me for- is protected as 'fair use' for parody site, in my opinion (and also the opinions of some of the lawyers I have been in contact with).
-bugg
CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) [ Footnote 17 ]
Wal-Mart has not mentioned trademarks to date, nor have they sued me. They're using the DMCA, yet my case has strong arguments against copyright infringement based on fair use.
-bugg
Ah yes...I can see how that applies.
Just as the images of Strawberry Shortcake were being used to parody something other than Strawberry Shortcake, the trademark images of Walmart are being used to parody something other than...wait a minute...
They're parodying Walmart with images of Walmart. I call Red Herring on you, Dr Dank. This is a pretty clear example of classic parody.
Mod me down and I will become more powerful than you can possibly imagine!
I'm not a lawyer, and this is not legal advice.
I'm a law student, but I think your description may be a bit misleading. Consumer confusion is usually more relevant to the trademark issues, although it may be considered under the question of substantial similarity in the copyright infringement inquiry.
He used walmart-foundation rather than walmartfoundation in the URL. This could easily lead to what's called initial interest confusion, where consumers are siphoned away from a legitimate site by a confusing label. This can be a basis for a claim of trademark infringement. If he had used walmart-foundation-sucks or something similar, it would avoid this problem. Also, there's a big trademark dilution law getting ready to go through, that will increase the likelihood that trademark owners can succeed in suits for 'tarnishing' or 'blurring' of their mark, e.g. by associating it with pornography.
As for parody, the more important considerations are of fair use, such as whether the parody is criticizing or commenting on the actual work that's copied, whether the copier has taken more than what he needed in order to make the parodic point, whether the use is commercial, and the effect of the parody on the market for the works.
No it is a Fair Use parody. If that isn't obvious enough for you try Section 107. Limitations on exclusive rights: Fair use of the US copyright law:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The site clearly falls into the nonprofit educational category.
chown -R us
Another factor is the amount of the work used:
3 - The amount and importance of the portion used in relation to the copyrighted work as a whole;
Fair use does not allow one to completely copy a Web site images and HTML, nor does non-profit or parody use completely exempt one from infringement liabilty.
Man, you open-source fanatics really think people don't have any rights in their IP. Fortunately, the US Constitution and US Copyright law disagree.
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
This link to Cornell University's Law School site states (from US Code):
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
So in this case, it was not used commercially and parody is a form of criticism, which is protected as fair use... how was he in violation again?
Actually, the DMCA is not related to copyright. It's related to copyright circumvention. If a person downloads a movie/song off the internet, or shares a song, they are NOT in violation of the DMCA, regardless of what the *AA want you to think.
The DMCA makes it illegal to either willfully circumvent a copyright prevention technology, or to create a technology that does. Most CDs still have no copyright protection. If you share or download a ripped non-protected CD, you are not violating the DMCA, because you didn't circumvent any protection measures. If you share a movie, however, it is likely that you have somehow violated the DMCA; downloading a movie, however, does not.
Remember, kids: the DMCA does not modify USC Title 17 (federal copyright law). It has nothing to do with the enforcement of copyrights.
I am scientifically inaccurate.