Filed under: Cease and Desist
By Paul Hogarth
Regarding Prop 8′s failed attempt to take down our logo, Dante Atkins — friend of the Courage Campaign, and front-pager on Daily Kos — had this to say:
“The all-time stupid part is that they’re wasting time trying to get Courage to … stop using a parody logo. Even if they were successful and after a process that would resolve itself long after Perry ends, the only thing they would accomplish is to prevent the site from using a logo. And in the process, all they do is create more attention for the site.”
He does have a point there. The First Amendment is pretty broad when it comes to parody, so their lawyers should have known their chances at winning were slim to none. When you’re writing a book, the best way to boost up sales is to have someone file an injunction to block it from being published. I’m reminded of how Fox News sued Al Franken for Lies and the Lying Liars that Tell Them, because they said the book misappropriated the term “fair and balanced.” Fox’s own lawyers didn’t want to file the suit, but Bill O’Reilly was so pissed off that he insisted they do so — all it did was make Al Franken’s book a bestseller. Certainly motivated me to go buy it. I mean, dammit … if people want you not to see it so bad, there must be really good stuff in there!
And it’s true. Our traffic hits went off the charts after this … thanks, Prop 8 campaign!
But that’s not how the opposition is thinking. See, I don’t think they really believe most of the garbage that they’re spewing out. The right-wing movement to pass Prop 8 — and other anti-gay amendments — are really part of a strategy to keep right-wing conservatives in power. There’s lotsa money to be made keeping the masses distracted by cultural, wedge issues — and to dredge up homophobia and malice against the “other” (in this case, gays) helps propel them politically. These folks have money to burn — where else do you think the National Organization for Marriage gets their money from, and how it just comes out of nowhere?
So a lawsuit to take down a logo on some website? Small potatoes for them — there’s more money where that came from. I don’t believe they’re even thinking about how it helps our website, and how we use this site to build community and a movement.
By Julia Rosen
Hot off the presses….
Judge Lawrence K. Karlton, a US District Judge just ruled against ProtectMarriage.org’s motion for a temporary restraining order (TRO) to take down our logo on the Trial Tracker. (background here and here)
Here is the key conclusion:
“[P]laintiff is unlikely to overcome the conclusion that defendant’s use of the mark is protected under the First Amendment, in that the use is relevant to an expressive parody and the use is not explicitly misleading.”
Our designer might quibble with this one, but the stuff about the First Amendment is pretty sweet:
In this case, the logo itself is artistic. Moreover, the broader website, while perhaps not artistic, is undeniably expressive of a political idea, and both political and artistic expression are protected by the First Amendment.
Obviously, we are thrilled that Judge Karlton thought they didn’t have a case. It’s what we have contended all along and why we have been mocking ProtectMarriage.com’s case mercilessly.
Now, this does not mean that the lawsuit has been dismissed. It is still pending, so this is not over. But we do get to keep our logo up for now and will continue to fight back against ProtectMarriage.com as long as it takes. They aren’t gonna bully us and we won’t let them turn themselves into victims.
I’ve uploaded the full ruling to Scribd so you can all see it for yourselves.
By Julia Rosen
Following on the cease-and-desist letter ProtectMarriage.com sent us last week, the Prop 8 attorneys filed late yesterday in U.S. District Court a complaint and temporary restraining order asking a federal judge to order us to take our parody logo down.
I guess we all know the answer to the question: Do they have a sense of humor or are they that offended by stick figures in dresses? (see background on this silly dispute here)
The Prop 8 attorneys have requested a temporary restraining order (TRO) prior to the full ruling. The case has been assigned to Judge Lawrence K. Karlton and we are currently waiting to hear back if he he has either granted the TRO, denied the TRO, or opted for a hearing about the TRO.
Our MoFo attorneys (the short-hand name our lawyers at Morrison Foerster go by) worked the midnight oil to prepare an excellent Opposition statement filed before the court. Short version: No fricken’ way we are taking the logo down. As our lawyer said, our logo is a “sassy” parody of their logo.
We continue to be entertained by the Prop 8 attorneys simultaneously admitting that the two images of gay parents and straight parents are “substantially indistinguishable,” and yet failing to grasp that that the difference between the logos illuminates the core difference between their views and ours. (more…)
By Julia Rosen
“While our client does appreciate the irony of the suggestion in your letter that a logo of a family made up of a man, a woman, and two children is “substantially indistinguishable” from a logo of a family made up of two women and two children, your assertion is incorrect.”
That’s everyone’s favorite line in our lawyer’s letter back to ProtectMarriage.com after they tried to bully the Courage Campaign into taking down our parody of Yes on 8′s logo used for this site.
So, according to ProtectMarriage.com a lesbian family is “substantially indistinguishable” from a straight one? Hey, will you admit that in court? Pretty please, it would be mighty useful.
After all, that’s exactly what our expert witnesses have been laying out in court. It’s nice to see that ProtectMarriage.com agrees, or at least their lawyer.
Just so we are clear:
Maybe they are just upset because they think it is two men in drag. Nah, it’s probably just the cheerful lesbians that they are pissed about. Not angry enough for them…
ProtectMarriage.com issues Cease and Desist for Prop 8 Trial Tracker logo depicting family of two mothers with two kids
By Julia Rosen
Earlier this week we received a Cease and Desist letter from ProtectMarriage.com, demanding that we immediately take down the logo for this site. (Well actually, they demanded we take it down from the Courage Campaign site, but it was clear that they were ticked off about the Trial Tracker logo.)
They are upset that we are parodying them and are making themselves out to be victims again. It’s just ridiculous. It’s very clear that the our logo is a parody, and they are just freaking out about an image depicting a family of two mothers with two kids. The ProtectMarriage.com logo was originally used as the pro-Prop 8 logo, you know the proposition this trial is about… that little thing.
All these guys want to do is stop everything from being public. They can’t stand the fact that they are on trial, that everything from their motivations to their intent are being scrutinized by a federal judge. After successfully crying wolf to the Supreme Court about the witnesses being shown on TV, they have turned their lawyers on us, or at least a lawyer way out in Ohio.
No, we aren’t going to take it down. We will not let them bully us, or let them turn themselves into victims. And our letter back makes that clear (scroll down to see it).
Here is their letter to us in all its glory:
They are clearly thin-skinned and are determined to press this issue legally, even though they really have no basis for pursuing this. Our lawyer had a nice little chat with their lawyer yesterday, which is referenced in our shall we say, inspired, spirited letter back to them.
January 14, 2010
John M. Skeriotis
Brouse McDowell LPA
388 S. Main St., Suite 500
Akron, OH 44308
Re: Alleged Copyright and Trademark Infringement
Dear Mr. Skeriotis:
As you know, Morrison & Foerster LLP represents Courage Campaign in connection with the intellectual property matters raised in your letter of January 12, 2010. Your letter threatening legal action and demanding a response in two days is a clear attempt to abuse intellectual property laws to stifle our client’s freedom of speech, particularly as no one is likely to confuse Courage Campaign with ProtectMarriage.com merely because of our client’s parody of your client’s logo. Courts in the United States have universally rejected attempts to use trademark and copyright infringement claims to obstruct free speech and shut down parody. Should your client attempt to press the arguments raised in your letter, it will
undoubtedly see the same result.
In this case, Courage Campaign is using a parody of the ProtectMarriage.com logo to provide commentary on the Perry v. Schwarzenegger trial and the viewpoint of ProtectMarriage.com, which Courage Campaign diametrically opposes. While our client does appreciate the irony of the suggestion in your letter that a logo of a family made up of a man, a woman, and two children is “substantially indistinguishable” from a logo of a family made up of two women and two children, your assertion is incorrect. This difference between our client’s parodic logo and your client’s logo is a graphical representation of the core difference between Courage Campaign’s views and ProtectMarriage.com’s views, presented in a sassy way that will not be lost on the public. You conceded over the phone that bloggers and online commentators noted the changes from man to woman and are making fun of your client, demonstrating that the public notices the difference and gets the joke. Creative works that are designed to poke fun at another group or communicate a message by modifying the other group’s own work or style in a key respect are the very essence of parody.
A parody is a literary or artistic work that imitates the work of another for comic effect or ridicule. Mattel Inc. v. Walking Mt. Prods., 353 F.3d 792, 801 (9th Cir. 2003). Parody is a form of criticism with socially significant value as free speech under the First Amendment. Id. at 801. Thus, when an artist released a series of photographs parodying Barbie in a way that was “ripe for social comment,” the artist “created the sort of social criticism and parodic speech protected by the First Amendment.” Id. at 803. The Ninth Circuit affirmed summary judgment against Mattel on all claims, including copyright, trademark and trade dress infringement and dilution, and state law claims. Id. at 816. Moreover, the Ninth Circuit acknowledged that a groundless or unreasonable trademark infringement claim against expression protected by policy interests in free speech may be an “exceptional case” justifying an award of fees and remanded the case to the district court for a determination of attorney’s fees. Id. On remand, the district court agreed that it was unreasonable of Mattel to make a claim against the defendant’s parodic work under both the Copyright Act and the Lanham Act, and awarded the defendant its attorney’s fees and costs. Mattel, Inc. v. Walking Mt. Prods., 2004 U.S. Dist. LEXIS 12469, at *3-11 (C.D. Cal. June 21, 2004).
This state of the law is echoed by courts throughout the country. For example, GTFM, LLC, a clothing company, sold clothing under the “FUBU (For Us By Us)” mark, meant to promote youth empowerment and leadership. It filed suit against Universal Studios, Inc. after Universal released the movie How High, in which a character wears clothing bearing the mark “BUFU,” explained as standing for “By Us F*** You.” Universal’s motion for summary judgment was granted as to all counts of the Complaint, “pursuant to the substantial body of case law establishing ‘safe harbors’ for this form of comical expression. Parodies of trademarks necessarily incorporate the original mark’s likeness in order for consumers to get the joke.” GTFM, LLC v. Universal Studios, Inc., 2006 U.S. Dist. LEXIS 30192, at *6-7 (S.D.N.Y. May 16, 2006).
Similarly, when the World Wrestling Federation (“WWF”) filed suit against Big Dog Holdings, Inc. for the latter’s use of phrases such as “Open up a Can of Woof-A**,” take-offs of WWF trademarks such as “Open up a Can of Whoop A**,” the court held that this “obvious joke” was parody protected by the First Amendment, and there was no likelihood of confusion. Judgment was entered against WWF. World Wrestling Fed’n Entm’t Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 435-36, 446-47 (W.D. Pa. 2003). Furthermore, it is not necessary for a parody to “state the obvious” – it is only necessary for a parodic element to “reasonably be perceived.” Mastercard Int’l Inc. v. Nader 2000 Primary Comm., Inc., 2004 U.S. Dist. LEXIS 3644, at *40 (S.D.N.Y. Mar. 8, 2004) (granting motion for summary judgment against claims of trademark and copyright infringement in their entirety).
When viewed in context, even beyond the parodic difference between the logos, there is absolutely no likelihood of confusion, which must be shown to carry a trademark infringement claim. See Two Pesos v. Taco Cabana, 505 U.S. 763, 769 (1992) (it is undisputed that trademark liability for unregistered marks requires proof of likelihood of confusion). As your letter notes, our clients are completely opposed in viewpoints. Visitors to both our clients’ websites are well aware of this fact. You even suggested on the phone that you are not taking the position that anyone is going to mistakenly donate to our client. Your client uses its logo on a website that prominently displays “ProtectMarriage.com” and other key statements of its position opposing gay marriage. Our client uses its parodic logo only in the banner of a website that displays, “Perry v. Schwarzenegger: Holding the right-wing accountable” and “A Project of Courage Campaign Institute.” There is no risk that existing or prospective supporters of our clients’ respective campaigns will be confused about Courage Campaign’s views, nor is there any likelihood that prospective supporters of your client’s campaign will accidentally visit our client’s website and believe that it is somehow affiliated with ProtectMarriage.com.
We are confident, for the reasons outlined above, that the allegations in your letter are without merit and an attempt on your client’s part to seek legal remedies would be easily defeated, likely with an award to our client of attorney’s fees and costs.
This letter is not intended to be a recitation of all of the facts or law pertaining to this matter or all of our client’s possible defenses. As you are aware, we were retained only yesterday, and you insisted today upon an immediate response. Accordingly, we have not yet had an opportunity to address every allegation in your letter. We are sending this letter now as
requested to prevent the filing of a precipitous and meritless legal action. Nothing in this letter should be construed as a waiver of any rights by Courage Campaign, all of which are expressly reserved.
Very truly yours,
/s/ Nathan B. Sabri
Nathan B. Sabri
Who knew lawyer letters could be so damn entertaining? Stay tuned as we await their next move.
To see the logos side-by-side, read this follow-up post.