Via Boing!Boing! comes word that The Electronic Frontier Foundation is threatening to sue Barney — well, at least they’re threatening to sue Lyons Partnership which owns Barney.
I like Barney, but apparently a lot of people on the Internet do not. There are quite a few sites that have parodies of Barney, ridiculing the cute, cuddly dinosaur.
When Lyons Partnership comes upon these sites, it sends a cease and desist order demanding that the parody site be pulled down claiming that it is “unlawful … to use this property without the permission of Lyons Partnership.”
Lyons is simply wrong there — parody of copyrighted and trademarked works are legally protected as free speech (typically the test is that a reasonable person would realize that the derivative work is a parody and that it uses as little of the original as possible — I think most reasonable people can tell that a Barney photoshopped to resemble the Devil is probably a parody. Though wouldn’t it be cool to turn Frank Miller loose on Barney? Call it Barney: The Purple Dinosaur Returns or something like that).
In fact, according to the Newsbytes article, Lyons Partnership has lost at least one parody case in the past,
Barney’s owners themselves once failed to protect the dinosaur’s image from parodies when a judge in Fort Worth, Texas, threw out a Lyons Partnership case against the owners of the San Diego Chicken. The defendants had taken their mascot and someone wearing a Barney costume to baseball games around the country in the late 1990s, having the chicken pretend to beat the stuffing out of the dinosaur — usually to thunderous applause from ballpark attendees.
Barney’s owners sought a minimum $100,000 fine for each “fight” conducted in public. But the judge in that case said the routines qualified as parody and were protected under the U.S. Copyright Act, U.S. trademark laws and the First Amendment. In September 1999, San Diego’s Fifth Circuit Court of Appeals agreed and dismissed the case.
In a letter to lawyers working for Lyons, EFF Legal Director Cindy Cohn writes that,
As they were when you threatened the EFF directly, your claims are baseless and a misuse of your copyrights. We once again urge you to cease threatening noncommercial hosts of parodical material. Should you continue, or should you carry out your threat to send this baseless threat to Dr. Frankel’s ISP [which hosts a web parody of Barney], we will investigate bringing affirmative claims against you.
Go EFF!
Source:
EFF Blasts Barney The Dinosaur’s Copyright Claims. Kevin Featherly, NewsBytes.Com, March 4, 2002.