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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Friday, May 09, 2008

Damage to reputation not grounds for denying fair use

Barney T. Rex parodies:


Another insult to Islam that could get us into deep-shit trouble: "The Jihad to Destroy Barney" roleplaying game.


San Diego Chicken was sued for beating up Barney T. Rex in ballgame skits. Mr. Chicken won the suit.

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Yoko Ono et al.'s official court complaint against the producers of "Expelled" said,
.
20. Internet “bloggers” immediately began accusing Mrs. Lennon of “selling out” by licensing the Song to Defendants.

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24. Rolling credits at the end of the movie state ownership, credit and permissions information for each such song licensed.

25. “Imagines” ownership and credit information is also displayed among the similar information for the other music used, but close inspection of the momentary reference reveals that the “permission granted” line was omitted in the case of the Song.

26. Members of the consuming public are likely to perceive this credit information in the Film as suggesting that the Song was properly licensed. Indeed, commentators in the press have widely speculated that such use was approved by the owners of the intellectual property associated with “Imagine”.

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28. Upon information and belief, Defendants have also intentionally and willfully used the Song in a fashion that suggests to the public that such use was authorized, endorsed or sponsored by the Plaintiffs.

An article titled "Unfair Use: The Lack of Fair Use Protection for Satire under § 107 of the Copyright Act" by Adriana Collado, in the June 2004 issue of the Journal of Technology Law & Policy says,

Although creators may argue that use of their works in satires which are controversial, distasteful, or offensive could lead to tarnishment by association, [74] reputational harm is not an interest that copyright law is designed to protect.[75] When authors or artists gain fame and fortune because their work has become popular or part of the social vernacular, they should be prepared to withstand unfavorable comments or uses of their works. Indeed, satiric use of a work is often a sign an artistic or literary creation has achieved public recognition.

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[74] Tarnishment is a form of trademark dilution in which a junior mark’s similarity to a famous mark causes consumers to mistakenly associate the famous mark with the junior user’s inferior product or service. 74 Am. Jur. 2d Trademarks and Tradenames § 116 (2003).

[75] Anastasia P. Winslow, Rapping on a Revolving Door: An Economic Analysis of Parody and Campbell v. Acuff-Rose Music, Inc., 69 S. Cal. L. Rev. 767, 783-84 (1996).

As Harry Truman used to say, "if you can't stand the heat, stay out of the kitchen."
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3 Comments:

Anonymous Anonymous said...

Now, from what I gather, when the video game satire of Barney used (uses) Barney, they are not using the real Barney but a representation of the character -- which would be quite different than using actual footage of the "real" Barney. Since Expelled uses the actual song and not a parody of it (as your blog does), I think you're comparing apples and oranges here.

Saturday, May 10, 2008 1:23:00 PM  
Blogger Larry Fafarman said...

You obviously missed my point here. My point is that damage to reputation is not grounds for denying fair use, regardless of how a reputation is damaged. You gotta look at the big picture. As the jingle goes,

As you go through life, my friend,
whatever may be your goal,
keep your eye upon the donut,
and not upon the hole.

Saturday, May 10, 2008 1:40:00 PM  
Anonymous Anonymous said...

< Another insult to Islam that could get us into deep-shit trouble >

THANK YOU for applying the Imprimatur of the IDiocy Department to this barefaced endorsement of appeasement.

Saturday, May 10, 2008 2:32:00 PM  

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