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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."
How to shoot yourself in the foot in three easy steps.
Simon.
WalMart don't like his site using their graphics? Well, I'm sure some good Slashdotter will soon post a link to the image he should put up instead... I'm sure WalMart won't like their customers inadvertently staring into the Great Gaping Hole O' Horror, but hey, it's not their image, so screw 'em!
Real Daleks don't climb stairs - they level the building.
he starts using "CENSORED BY THE DMCA" so we'll all cry fowl
Uhmm....Chicken! Albatross! Swallow (African and European)! Emu! Canary! Oh, you meant foul.
Mr. T pitied this fool on 27 July 1992.
"Literature should not be suppressed merely because it offends the moral code of the censor." ~ William Orville Douglas (1898-1980) US Supreme Court associate justice, 1935-75, professor of law at Yale
"Censorship ends in logical completeness when nobody is allowed to read any books except the books that nobody can read." ~ George Bernard Shaw (1856-1950) British playwright & novelist
"The Internet treats censorship as a malfunction and routes around it." ~ John Perry Barlow (1947-) Wyoming cattle rancher, a lyricist for the Grateful Dead
"I believe in censorship. After all, I made a fortune out of it." ~ Mae West (1892-1980) American comedienne from "My Little Chickadee," 1940.
"Censorship is almost systematically the weapon of first resort for governments in uncertain political situations. So not only are the famous writers and bold journalists in danger; at every level of public and private life, the freedoms to think, read or write are denied. In the absence of a free press, other human rights abuses flourish unabated. Nothing is reported, criticized, questioned. The example of imprisonment, torture or execution imposes a further silence. A blindly obedient mob mentality is encouraged, driven by extremist religious or ethnic loyalties. The citizens do not know what is happening. Fear and ignorance permeate discussion." ~ Marian Botsford Fraser
"Censor: A self-appointed snoophound who sticks his nose in other people's business." ~ Bennett Cerf
[quotes from zaadz.com]
He who knows best knows how little he knows. - Thomas Jefferson
You're right, they're not bitching, they're having their lawyers shut the place down.
Walmart's ONLY beef was that he was using their images.
Which is irrelevant, as (according to Section 107 of the US Copyright act) it was fair use:
Parody is both criticism and commentary.
there may be some grey area with parodies
Uh, no. There is no gray - it is very much black and white.
he starts using "CENSORED BY THE DMCA" so we'll all cry fowl
And rightly so. His First Amendment rights are being violated.
From the article: "An interesting aspect of the cease and desist is that it was signed by a lawyer who wrote that she was acting on behalf of Wal-Mart Stores, Inc. This statement unintentionally emphasizes one of the main points that my parody was trying to prove all along: The Wal-Mart "Foundation" is nothing more than a front group for Wal-Mart Stores Incorporated, and should not be confused for a real charitable non-profit."
"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.
Wal-Mart does not care about this kind of bad PR. The people who would find this type of action detestable are not Wal-Mart's target demographic. Wal-Mart has continually eaten bags of poop in the mainstream media over their staunch opposition to unions and the way they've destroyed most mom-and-pop type stores, but this hasn't translated to lost sales for them, because the people who shop at Wal-Mart care about one thing, and one thing only: low prices. As long as this suit doesn't lead to higher prices, Wal-Mart will come out of it financially unscathed.
rooooar
You see how the system works to everyone's benefit? Everything fits together tidily. It's called feuda^H^H^H^Hcapitalism, and it's a good thing, despite what Comrade Tyler and his gang of pinko subversives might have you believe.
Real Daleks don't climb stairs - they level the building.
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.
Not only is it criticism and commentary, but this is a student engaged in an activity directly related to scholarship, so that's three counts in his favour.
Blank until
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.
And Lindows != Windows
Oh, wait!
The race isn't always to the swift... but that's the way to bet!
As it turns out, the distinction between foul and fowl is an albatross for many.
-Peter