You remember that movie people versus larry flynt? - it was based on a real life supreme court decision that says satire is protected speech.
Flynt made fun of a leading Christian who sued him and lost.
That’s OK for the wealthy, but how about if some poor schmo wanted to make fun of an org that is ruthless about protecting its copy write?
I have an idea for a tshirt to sell out side of a concert type venue making fun of the goings on inside.
the owners of the event have had shirts confiscated for copyright infringement, but this would safely be satire. I would have to represent myself so I’m hoping some one may have a tip as to where to start looking?
The real life case was Hustler Magazine v. Falwell, and it had nothing to do with copyright. If you are going to sell T-shirts outside a concert, them you need to be careful about copyright and trademark infringement, and to know how far you can go, you probably need to consult an intellectual-property lawyer about where the boundary lies.
Satire is protected under the First Amendment. However, protecting yourself is part of civil law and that means that a good lawyer has to get involved. Good lawyers cost money.
If you try to protect yourself you will lose to a good lawyer. That’s the whole story in a nutshell.
One thing I’ve learned by following the rise of a lot of internet celebrities (mostly comedic reviewers) is that corporations have a lot of power due to money and paranoia. Youtube is a very poor place to put a lot of videos despite its size because Youtube will take a lot of things down if a corporation reports it as infringement, with little to no chance of the decision being reversed, because Youtube/Google really, really don’t want a DMCA lawsuit for failing to take down for a legitimate complaint.
Channel Awesome had a few incidents where a corporation threatened to sue if they didn’t take their review or parody down, and they pretty much had to shrug and take it down until they could convince the corporations not to sue, even though legally they were in the clear (usually the argument “this gives you exposure and free advertising” was involved).
Again, good lawyers cost money. Satire is protected, but a lot of corporations are very zealous, either because they have to be to maintain their trademarks or because they want to suppress negative comments on their product. As a small fry without a lot of money, you’re really at their whim if they seriously threaten to sue because even if victory is near assured, the legal fees may outweigh the benefit gained from winning (or put your business under before you win at all).
ETA: And yeah, the T-shirt is murky territory. You have to be very careful about Trademarks since I think they have somewhat complex rules, talking to a lawyer isn’t cheap, but it may be worth it depending on how big of a behemoth the owner of the concert is.
First, you need to learn the difference between copyright and trademark. Second, you need to learn how to spell “copyright.” Third, you need to learn the difference between misusing the trademarks and copyrights of an organization and slandering (or libeling) an organization. If you want to make a satirical statement about an organization, you don’t need to get yourself into further trouble by also violating trademark (and maybe copyright) law.
thanks, I freaking hate when I misspell, especially when I am talking legal questions.
an ex GF of mine was a legal sec at OM&M and the rain maker she worked for couldn’t spell either so I don’t feel so bad…still…its embarrassing.
hmmm, its a funny joke, immediately recognizable satire , but I need to use their trademark for it to work and sell.
You’re very correct, I had trademark/copyright confused. Its much easier for me to discuss 2nd Amendment law.
This is omitting a few key points. Virtually all US-based content hosts will comply with a DMCA takedown notice, because that’s how the DMCA works. Youtube will accept a DMCA counter-notice for disputing a takedown, which again is the way the law works. Google generally makes their handling of DMCA notices quite transparent, and Youtube recently improved its handling of copyright complaints.
Corporations have no more power when it comes to issuing or countering DMCA notices than individuals. Some individuals are quite prolific at issuing them.
The term you’re looking for is “fair use” and it is enshrined in law at 17 USC 107: Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A [copyright law], 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…
The seminal case for the idea that satire is a particularly protected form of fair use is Campbell v. Acuff-Rose Music, in which the Supreme Court found that terminally annoying bad boy band 2 Live Crew could sample from “Pretty Woman” even though Roy Orbison had specifically told them not to. Warning to those who read the opinion: an analysis of a rap song by stuffy old white men is contained therein.
If you plan on using someone’s trademark, you need to research whether it is a famous trademark. You will have less leeway with the Rolling Stones than a new band.
According to the content providers I’ve talked to, youtube’s counter-notice policy doesn’t apply because they can’t say they own all the content in the video. This sounds worse than it is: it’s legally in the clear according to the lawyers they usually get later in their careers (fair use since it’s a review (i.e. criticism with significant added content) or parody), but since they don’t own, say, the movie footage Youtube refuses to step in and suggests they approach the claimant for a retraction that they’re usually not keen to do. At least so the people I’ve talked to from Channel Awesome say (about way back when they were on Youtube and not Blip). Though maybe the new policy you linked will make things better.
Though you’re right that a lot of individual small-fry artists do it to about the same effect.
Where you may still have an issue is in use of their trademark. Trademarking is about not passing off your t-shirt as is any way being a product of the event you are satirising. Some groups actually have a sense of humour, and could conceivably consider satirising themselves, and might consider selling their own t-shirts. You selling your t-shirt would be direct competition, and confusing for the buyer. (This argument would hold even if the event you want to satirise has zero sense of humour and would never think of doing so in reality.) Once you start to make money from your satire, and you are using their trademark, it isn’t about copyright anymore. If I were them, and were annoyed with you, I would hit you with trademark infringement. That isn’t in any sense protected. Even a pastiche of their trademark could be difficult to defend. And as noted above, there is zero chance you would have the funds to even consider fighting.
For trademarks, satire always trumps that. This t-shirt has been available for years, yet the trademark owner can’t stop it (and probably would like to if they could). You just have to be sure that the trademark is altered so that it doesn’t look like officially licensed material.
Yeah, the cocaine satirisation of Coca Cola is the definitive version of that issue. But the critical point is that no-one could ever be confused as to whether this was a use of Coca-Cola’s trademark, and thus as to whether this was a Coca-Cola product, or endorsed by them. Coke do claim the “ribbon device”. The other point is that a t-shirt isn’t a soft drink. Trademarks are restricted to the area of trade that the owner is trading in. If you tried to sell a soft drink called Cocaine, and using the ribbon device as the text, you would last microseconds before being smacked down. For some form of event, t-shirts would probably be regarded as part of doing business, it is such a common thing to do, and thus the trademark of the event would probably be considered to apply to t-shirt sales.
I recall an article about “South Butt” T-shirts and other gear. (Google it; also “Butt Face”)
Basically the North Face logo turned around 180 degrees.
But again, the same problem applied - it may be legally acceptable, but if you go broke proving it - what was the point? So they came up with other creative “in your face” designs… Keep the lawyers for North Face busy writing letters…
The law may work that way, but it doesn’t change the fact that every one of these people winds up moving to another content provider where they don’t face the same problems. Blip.tv is one that makes a big point about allowing fair use and defending that use. And they have been in business since the dawn of YouTube. And nearly every reviewer of popular content eventually moves to them.
People wouldn’t care so much if all they did was take it down, which would allow you to remove the offending content and put it back up. But they also institute a strike policy that does not take into account how many non-infringing videos the channel has used. It’s simply three strikes and your off YouTube. And, while you can appeal a strike, it often takes months and thus is not worth it to the channel owners–especially since they seem to require legal-wording for it to work. You have to know copyright law quite well to make a rebuttal.
YouTube doesn’t just take things down when requested, either. They provide tools specifically to help the content providers track them down, and allow them to make automated requests from this software, without any human interaction. These software programs are inevitably not going to notice fair use of copyrighted content. They can’t. They actively encourage bad DMCA notices.
It doesn’t matter if YouTube has made this better, because they’ve already driven off a ton of people–people who, once any popular channel inevitably gets an invalid DMCA notice, encourage the people to get off of YouTube. The only people who get to stay on YouTube don’t get to use any copyrighted content at all. Not even just using still images while reviewing something makes you safe. (As Geekvolution, a channel I really like, recently discovered.) Any change in policy is too little, too late.
What’s being discussed here is parody, not satire. Gulliver’s Travels is satire, Bored of the Rings is parody. (Gullible’s Gavels could be a parody of a satire.)
