Wal-Mart Parody Site Censored by DMCA 469
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."
Walmart is in a world of hurt... (Score:3, Informative)
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/ hustler.html [bc.edu]
not a huge deal (Score:1, Informative)
Of course (Score:3, Informative)
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 [freedomforum.org], 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.
Wrong on Song (Score:4, Informative)
Re:This is waaaaay overblown... (Score:2, Informative)
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.
Re:Foolish boy... (Score:3, Informative)
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.
Re:Parodies are great, but... (Score:5, Informative)
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.
Re:Look alike graphics would be OK. (Score:5, Informative)
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.
Re:Foolish boy... (Score:5, Informative)
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.
Re:Parodies are great, but... (Score:5, Informative)
Re:Foolish boy... (Score:5, Informative)
Re:Foolish boy... (Score:2, Informative)
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.
Re:Foolish boy... (Score:2, Informative)
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...
Re:This is waaaaay overblown... (Score:4, Informative)
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).
Re:If this parody is legal... (Score:5, Informative)
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."
No it doesn't (Score:3, Informative)
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.
The wonders of inflation.... (Score:3, Informative)
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 [frb.fed.us]: 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.
Re:Foolish boy... (Score:5, Informative)
Before you complain about injustice... (Score:1, Informative)
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.
Re:not a huge deal (Score:2, Informative)
Yes, when I create a site that parodies people like you who post on slashdot (and the paranoid culture and driveling writing on slashdot), I can use the images from slashdot. I probably wouldn't do this, as you understood that you could be mistaken, but you were modded up to +3 informative while being mistaken.
I must note that this only applies in the US, as parody is protected here, whereas it is not in other countries. See PubLaw [publaw.com] for a better description. (I found this by google BTW)
Re:It isn't Boring Boring (Score:3, Informative)
Just clarifying, in case anyone thought I added that after the takedown notice.
Courts (Score:2, Informative)
Jorge Canelhas
Are you a Retro Computing Fan ?
http://example.com/ [example.com]
Re:If this parody is legal... (Score:3, Informative)
Re:Look alike graphics would be OK. (Score:5, Informative)
CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994) [ Footnote 17 ]
Re:Look alike graphics would be OK. (Score:3, Informative)
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.
Re:This is waaaaay overblown... (Score:5, Informative)
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.
Re:Foolish boy... (Score:5, Informative)
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.
Re:It's more than just DCMA (Score:2, Informative)
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.
You don't just list one factor (Score:4, Informative)
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.
Re:Unfortunately.... (Score:3, Informative)
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?
Re: Just call it MalWart (Score:2, Informative)
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.
Re:You don't just list one factor (Score:3, Informative)
In fact it does.
You can go into business selling derivative copies [wikipedia.org] under Fair Use.
The law to which you reffer [warwick.ac.uk] really only says one single thing with binding legal effect, and that is:
the fair use of a copyrighted work [] is not an infringement of copyright.
That law, secotion 107, really doesn't impose any other restrictions or limitations. The part I clipped out of the middle was a nonbinding list of examples of Fair Use. The part at the end, the four listed factors, those are also actually nonbinding. They are merely a list of four factors which shall be considered. The courts are free to consider other factors as well, and routinely do so. For example they often also consider whether a use is "transformative". The courts are also perfecly free to give the four listed factors absolutely zero weight compared to any other factor they choose to consider. You can in fact "fail" on all for factors and still be absolutely Fair Use, though it would obviously be an unusal result requiring a rather unusal situation.
So all the it says as a matter of law is that the fair use of a copyrighted work is not an infringement of copyright. *If* something is Fair Use then all copyright restrictions are null and void. Absolutely anything and everything is permissible so long as it is indeed Fair Use.
I haven't seen the student's original website, but based on the description is sounds like an absolutely clear cut case of fair use. It does not matter that he copied almost the entire thing if it was done as a parody, and the fact that he did so for a noncommercial purpose overwhelmingly weighs as Fair Use, and the fact that he did so for political / socially signifigant purpose makes it an an absolute slam dunk.
Wal-Mart's absolutely abused the DMCA takedown procedure to rip first amendment protected speech off of the internet. It is such a flagrant abuse of the DMCA takedown process that Walmart may just be open to prosecution or countersuit. The standard to legally issue a DMCA takedown notice are insanely low, but they are not nonexistant.
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.
I suggest you study the constitution and copyright law, and most specifically the important Supreme Court cases on the subject. I can provide you with links to Supreme Court cases if you actually intend to read them. Cases where the Supreme Court explains there there is no inherent right to have a copyright, that the copyright holder only has the rights explicitly granted to him, explaining that there is no property right in the work itself - that it is the legal bundle of rights that is owned, that Fiar Use exists based on afirmative constitutional rights and that the copyright holder owns no rights in cases of Fair Use because congress does not have the power to create a law granting him rights over it.
Copyright is a good and useful thing, but it is not property law and you'll get all of the law wrong if you take a backwards property view. To the extent that any work of authorship is 'property', it is fundamentally public property. The initial legal state is unrestricted, public domain. The Constitution allows congress to temprarily take certain rights to it away from the public and grant them to the copyright holder. Violating the rights the copyright holder was granted is indeed copyright infringment. The copyright holder was not granted - and could not be granted - any rights over Fair Uses. Figuring out what is or is not Fair Use can certainly be a complex issue, but you can't even begin to address the issue if you start from a backwards "IP" model view that the work itself is some sort of natur