EFF Sues Barney Producers over Spoof Sites

PetManimal writes "The Electronic Frontier Foundation is suing the company that produces 'Barney and Friends' for harassing the creator of a Barney parody Web site. Barney producers Lyons Partnership has threatened lawsuits over the past few years against Stuart Frankel and his parody site, actions which the EFF says violates freedom of speech and fair use laws. The parody site contains doctored images of Barney, and claims the purple dinosaur is the Antichrist. From the article: 'Lyons Partnership has sent multiple cease-and-desist letters to Frankel for a Web page that includes a depiction of the fuzzy purple dinosaur as Satan. In an October letter, Lyons demands that Frankel immediately take down copyrighted images of Barney. The company threatens to take legal action or contact Frankel's Internet service provider if he doesn't comply.'"

Comments

Barney's got a brand new bag

[Red Flayer]

I sue you
They sue me
We're all part of a
Lawyer-enriching Copyright industry that contributes little to the public good.

Does that rhyme?

Re:Barney's got a brand new bag

[Tackhead]

> I sue you
> They sue me
> We're all part of a
> Lawyer-enriching Copyright industry that contributes little to the public good.

To the Lyons partners,
Dewey Cheatem, Howe,
Up yours, Barney.
Pay Stu now.

Re:Barney's got a brand new bag

[hal2814]

With a knick-knack paddy-whack...

Oh wait, that's the wrong song.

So Barney, who has spent his entire career putting new words to very old songs, is suing someone for parodying his work? That would be like Puff Daddy suing over someone parodying "I'll be Missing You." (And yes I realize that the big purple dinosaur is not really doing the suing but it's more amusing to think of it that way.)

Re:Barney's got a brand new bag

[Pharmboy]

What pisses me off is /. didn't link to the site, and the article didn't link to it either. Either they are all afraid of getting sued, or they don't want me to SEE the actual site and make up my own mind whether the site is "parody" (fair use), "satire" (not fair use) or something else.

I did finally find it at this address and did a whois to make sure the domain is owned by Stuart Frankel. Not much here except some dead links (other threatened sites?) and what appears to be Fair Use to me, but IANAL.

Re:Barney's got a brand new bag

[Goweropolis]

Ladies and gentlemen of the jury, I'm just a big purple dinosaur. I fell on some ice and later got thawed out by some of your scientists. Your world frightens and confuses me! Sometimes the honking horns of your traffic make me want to get out of my BMW.. and run off into the hills, or wherever.. Sometimes when I get a message on my fax machine, I wonder: "Did little demons get inside and type it?" I don't know! My primitive mind can't grasp these concepts. But there is one thing I do know - when a man like the defendant makes fun of big purple rhyming dinosaurs, then he is entitled to no less than two million years in jail. Thank you.

R.I.P. Phil Hartman, Unfrozen Caveman Lawyer

Re:Barney's got a brand new bag

[CODiNE]

No but this does.

I love sue
Sue happy
Litigatious family

With a great big team
Of lawyers just for you
Don't you say I'm Anti-foo!

So will I be sued for my Hulk stuff?

[Hulkster]

I've got a mish-mash of Hulk Stuff up on my site - will these type of people threaten a lawsuit against me ... or just SMASH?!?

P.S. Satire is protected speech - doesn't that apply here in the Barney case?

Barney...Isnt he dead?

[dontbflat]

I thought I killed that guy in HL2. Maybe I'll get him in HL3

One Line Of Legal Defense

[Steve B]

The parody site contains doctored images of Barney, and claims the purple dinosaur is the Antichrist.

I dunno about copyright infringement, but they should be safe from any defamation charge -- truth is an absolute defense.

Re:One Line Of Legal Defense

[uncoveror]

If a parody calling Barney the anitchrist is funny, how about a parody calling him an Al-Qaeda terrorist? I did that, and got a similar nastygram. To publicize these events, I published this and this.

I hope the EFF really lays the smack down on Lyons Partnership.

Hmm.

[ackthpt]

What's the legal standing of taking someone else's photographs and modifying them, even for Satire or Parody?

I'd suggest Frankel make up his own costume and photograph it.

We're quick to take issue when, during a poltical campaign, some photograph of Kerry giving a speech years ago is doctored. I think there is some precedent there. Doesn't it apply equally to what Frankel is doing?

Re:Hmm.

[R2.0]

I believe the concept of fair use specifically and clearly covers exactly the situation you describe - modifying a copywrited work for parody or satire. Check the "Wind Done Gone" case.

The doctored photos of Kerry were different - they weren't satire or parody. And the furor over them wasn't about copyright violation - it was over the intent to deceive.

Re:Hmm.

[Pharmboy]

Satire is NOT covered under Fair Use. Parody is covered. (ie: You can use Barney to make fun of Barney, but not to make fun of something else.) This is why many [company]sucks.org websites use parody as a means to protest against a company, as it is a well tested Fair Use exception.

Using the images of the copyright holder is considered Fair Use if it does not reduce their ability to make a profit (ie: you are giving away an image they charge for) or cause confusion about the intent of what you are doing (reasonable person wouldn't think that it is BARNEY who is saying he is the antichrist).

Changing the image of the copyright holder for the parody, or simply mocking up your own image based on their trademark or copyright is better/safer. The more of the copyrighted material you use in the parody, the closer you get to infringement. The fine line between parody and libel is sometimes up to courts to decide.

IANAL, but deal with this enough, and while there are exceptions, and anyone can sue you even when you are in the right, this is a rough guideline.

Did the lawyers read the dmca law?

[tinkertim]

If these guys even glanced at the DMCA laws they would kick themselves in the legal checkbook. Anyone who operates a hosting company , even one on the side knows when the formal DMCA notice arrives, you must yank the site unless the owner can furnish a court ruling allowing it to exist. Depending on your upstream provider, some will go to bat if you can show your client is at least in litigation with the complaining party .. and wait for the outcome, but that's rare. Anyone hosted in infomart (or on level3, cogent, willtell , etc bandwidth) or any other 'cafeteria style' DC is under a yank-first-and-ask-questions-later policy.

That being said, such a court ruling would almost be automatic. Parody sites are protected, I helped one of my clients stand up against the big bad e-bay and they won. I'd post a link, but .. well I don't feel like going to the DC with a fire extinguisher to put out the nic :)

I've never, ever seen someone threaten to go to the isp *last* .. how did this feeble gray matter manage to cook up something that took over children's television for years?

At this point their lawyers saying anything other than "Duh!" would be almost as comical as the parody itself.

What a world.

Re:Did the lawyers read the dmca law?

[jafiwam]

I was under the impression it was a "take it down till the site operator tells the host they are taking care of it".

Basically, forcing the host to be a pass through of information or just to take it down. Effectively removing the host as a protector of the site. (I.e. "we just host it, you need to contact the webmaster" while the webmaster has no available contacts and is trying to remain anonymous.)

The operator does NOT need to show proof of anything other than that they are aware of the notice the host recieved and that they are contesting it. So "no, it's not a violation, put it back." is good enough.

At that point, the host is out of it and it's between the operator and the person or company that is complaining. Otherwise, you are asking the host to act as an agent of the court, or to BE the court.

Ean St Eane

[pottymouth]

I thought people would learn not to mess with Barney when he had Ean St Eane kneecapped.... Geez, I wouldn't want to get on his bad side.

Re:As a prent of 2 toddlers and an infant...

[System.exit(true)]

The letter: http://www.chillingeffects.org/copyright/notice.cg i?NoticeID=2476 Link to site found in letter: http://www.dustyfeet.com/evil/enemy.html

Doctored Kerry photo.

[krell]

"during a poltical campaign, some photograph of Kerry giving a speech years ago is doctored. I think there is some precedent there"

I doctored it, and then I undoctored it.

Let's back up from this a bit....

[StressGuy]

We are mobilizing armies of lawyers for a legal battle between a show about a stuffed purple dinosaur and a website that makes fun of the stuffed purple dinosaur.

seriously, isn't life a little too short for this?

Re:Let's back up from this a bit....

[WWWWolf]

We are mobilizing armies of lawyers for a legal battle between a show about a stuffed purple dinosaur and a website that makes fun of the stuffed purple dinosaur.

That should be "between copyright owners of a show, and a website that makes fun of the show."

People should be allowed to make fun of anything they please. The target should have every right to be enraged, of course, but they should have no right to lawsuit the said fun-makers out of existence, or even threaten with that. Both sides have their rights, you know.

It just happens that in this case, there's purple dinosaurs involved.

Better take down my Steve Ballmer parody site!

[pandrijeczko]

...because on there I've mentioned about him having a long golden mane of hair, being a lover of fine antique chairs and being a wonderfully agile dancer, equal in agility to Nureyev.

Better take it down quick before Microsoft come after me!

Do you think they'll let me keep up the bit about him saying "Linux is like a cute little Golden Retriever puppy that everyone wants to cuddle forever"?

The address

[Harmonious Botch]

http://dustyfeet.com/evil/enemy.html

Barney Protected, Teletubbies Less So

[Dunx]

This is good news, but it's a shame that the EFF couldn't have stepped in years ago when the producers of the Teletubbies shut down all of those parody sites. The difference may have been to do with variations in national laws (no explicit free speech rights in the UK, AFAIR) - I hope it's not just time.

SLAP worse than smash.

[twitter]

will these type of people threaten a lawsuit against me ... or just SMASH?!?

You might think the whole affair is funny, but the ability to use popular culture icons to make a point is what's being defended.

That depends on who you piss off and how many people notice. If both are true, you might get slapped, which makes this kind of harassment worse than it looks at first.

The regulation of broadcast has given tremendous power to those who control it. They have had the ability to mold and use popular culture for a long time. Your inability to use their images and sounds as shortcuts to make a point put you at a disadvantage when you want to argue a point with the public. Cable and the internet has diminished broadcast influence, but there's plenty of concentrated power left as this Barney case illustrates. Ultimately, free culture will level the playing field. An EFF victory here will make others easier.

At stake is your ability to use your culture for your own ends. That ability is only in doubt because copyright law is out of control.

Re:SLAP worse than smash.

[Bob9113]

Cable and the internet has diminished broadcast influence, but there's plenty of concentrated power left as this Barney case illustrates. Ultimately, free culture will level the playing field.

Not necessarily. If we reach a point where the Internet is not a level field, then we will be right back where we were twenty years ago: Freedom of the press belongs to those who own one. Given that the people in the US with the money and power are directly threatened by free competition, that the people who benefit most from it (We The People) are predominately ignorant of what is happening, and that even those who do know what is happening are too comfortable to make real sacrifices (eg: jail, bodily harm, death) to defend it, how long do you think the free Internet is going to last?

True Story

[StressGuy]

Years ago, I worked as a civilian contractor at an Army Guard base. One of the secretaries there was a bit heavyset and a bit "top-heavy" as well. One day, she comes in wearing a purple sweater and somebody makes an obligitory Barney reference, at which point, she flips him off

Would that be considered fair use?

Revised Re:The address

[AlgoRhythm]

That's the original site, the current is here for the intro, and here for the current saga.

Stuart may relate this on his page (it's been a while since I read it), but from talking to him it basically has escalated, and they chose to sue, because despite an order to only contact him through his lawyers at the EFF, Barney's folks have continued to mail him nastygrams directly.

Re:Revised Re:The address

[geckoFeet]

Stuart (me) says:

As of this writing nobody has heard back from the Barney lawyers. This is scary because their letters were obviously sent automatically, and when the computers finally do take over, it's not going to be by controlling the power grid but by sending out legal notices. So the process may have started at Lyons' lawyers. Either that or they're all pod people.

And, yes, it's unethical for the lawyers to contact me directly after I have an attorney of record in the case and, yes, we've filed an ethics complaint about that.

And, yes, the whole thing is ridiculous, which is why I put a little explanation on my home page, namely:

" This is my little corner of the web, and the bullies can't have it. There's nothing more to it than that. "

And that's all there is to it.

Stuart Frankel

---
i have a very small website
http://dustyfeet.com/

1st Amendment and Parody

[Stranger4U]

The US Court System has previously ruled (need a reference here) that parody is protected under the First Amendment. That's how people like Weird Al get away with what they do. I doubt that the website seriously considers Barney to be either Satan or the Antichrist, so it's a parody, it's protect, no lawsuit.

I'm sure all the lawyers know this and were just trying to bully the website into closing, knowing they couldn't win a trial.

Re:1st Amendment and Parody

[Vellmont]

He was asking permission long before there were "gangsta rappers"; Prince has always refused to grant permission, so he paradied his videos, because video images have much weaker protections. Parady is not a magic wand that protects everything you do in its name..

No it's not, but it's also very clear that what Weird Al does IS protected by fair use. It's probbably not a lot of fun being sued all the time, even though you know you'll win the suit.

Speaking about the Antichrist angle...

[T_ConX]

I found this on Wikipedia...

1. Barney is well-described with the following phrase:
CUTE PURPLE DINOSAUR
2. The old Latin alphabet used the letter 'V' in place of 'U', therefore the above phrase is modified to:
CVTE PVRPLE DINOSAVR
3. Letters that do not represent Roman numerals are removed:
CV-- -V--L- DI----V-
4. Add up the Roman numerals of the remaining letters:
C + V + V + L + D + I + V
100 + 5 + 5 + 50 + 500 + 1 + 5 = 666, which is the Number of the Beast.
5. Therefore, Barney is considered Satan.

HA! Because Numerology is TOTALY admisable in court!

The site in question

[SirClicksalot]

Couldn't find it in the linked article, found it on EFF page:
original site
site after complaint

Good 'ole Barny

[dubdays]

...claims the purple dinosaur is the Antichrist.

Well, I guess the truth hurts.

Re:Parody v. Satire?

[Pharmboy]

An example in a nutshell: The Michael Jackson song "Bad". Weird Al makes a song called "Fat" that is similar to the song "Bad" to make fun of the song "Bad" itself. That is parody.

Now pretend you and I use the same song "Bad" to make fun of George Bush, or IBM, or Microsoft or something EXCEPT the original song/artist/concept itself. That is satire. The song "Bad" is no longer the thing we are making fun of, we are just using it for another purpose. This is NOT fair use.

The difference is the target, not the vehicle. And yes, sometimes it gets cloudy, and what it is your are making fun of may not always be clear. Whether Wikipedia sees it this way, in a court of law (from my limited experience) this is how it is defined.

Or to make it shorter: It is Fair Use to use a copyrighted item to make fun the of the same copyrighted item (parody), but not Fair Use to use a copyrighted item to make fun of something else (satire).

Why isn't Satan suing?

[XenoPhage]

Perhaps the producers of Barney want the images removed because it's giving Satan a bad name? Hell, if I were Satan, I'd be suing Mr. Frankel for defamation of character.. Everyone know Barney is MUCH worse than Satan...

BarneySplat!

[Yonder Way]

I remember hanging out at ASCII Express's place during the BBS days. I ran a local BBS and so did he. AE had a special place in his heart for Barney and came up with a great door game that can be run as a standalone game in DOS as well. Anyone remember playing BarneySplat!?

Someone should put that in a VMware image so everyone today can enjoy it.

Well, now ...

[ScrewMaster]

Barney may be the Antichrist (and I'm not saying he isn't) but there are an awful lot of lawyers that definitely qualify as minions.