What Becomes of the Broken-Hearted?
Apparently, they write e-mails threatening silly lawsuits. I was amused to find the following e-mail from “M R” in my inbox tonight. The e-mail was entitled “Authorization of image use.”
Dear www.hirejimessian.com
It has recently come to attention that an image captured from the website www.canthecubsmendmyheart.com, has been re-purposed for usage on the website www.hirejimessian.com.
Direct links to two known usages of this image are
1. http://hirejimessian.com/index.php/2008/03/25/can-having-sex-with-a-bunch-of-anonymous-woman-mend-my-heart/2. http://hirejimessian.com/
The image, from www.canthecubsmeandmyheart.com, is a screen capture of an interior page from the website, with a photograph of a male. This image was self-published and copyright protected.
The instance of this usage was not authorized by the owner, which is an infringement of the copyright, and therefore it is kindly requested that this image be removed from the website www.hirejimessian.com immediately, under all instances of usage.
Please comply with this sincere request, to prevent any further legal action.
Thank you for your cooperation and understanding.
Legal action? Intriguing! Below is my response:
Dear Sir/Madam:
As you appear well-versed in copyright law, I am confused by your e-mail which demanded that Hire Jim Essian! remove a copyrighted image from its website to “prevent any further legal action.” I assume that you are a lawyer, since, to my knowledge, the only “action” that has been taken was the below e-mail sent to me by “M R.” Operating on the assumption that you are an attorney, I am sure that you are aware of the “fair use” exception for copyrighted work. In case you need to refresh your memory, 17 U.S.C sec. 107 reads as follows (emphasis added):
“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.”
Let us examine these four factors one at a time.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
To give you some insight, the purpose of this provision is to protect the value of the copyrighted work for the original author without curbing the freedom of speech afforded to those wishing to prepare derivative works. The law abhors quelling innovation and invention, and derivative works and parodies are exactly the types of works which are a benefit to the progression and advancement of our society. As such, the courts are very hesitant to enjoin derivative works.
That is not to say that the courts will not protect the original author of a work. For example, the picture used in the derivative work shows an unwashed male wearing a v-neck t-shirt depicting a Cubs logo surrounded by a lopsided heart. Were Hire Jim Essian! to start selling a similar v-neck t-shirt, such commercial use would arguably diminish the value of said shirts (if possible), and the courts would be more prone to protect the copyrighted work. Of course, the Chicago Cubs, who own the rights to the logo depicted on said shirt would certainly protect their own intellectual property against both parties, rendering any legal argument between the two parties moot.
Since the derivative work is clearly not intended for any commercial purpose, but rather is used for the purposes of satire, parody, and criticism, Hire Jim Essian!’s use of the image constitutes, on this point, a “fair use.”
(2) the nature of the copyrighted work;
While internet websites are deserved of the same copy protection as published works, the unique and kinetic nature of works published on the internet are such that the courts are largely undecided as to the appropriate methods of protecting such works. Furthermore, as the original copyrighted work appeared to be a viral marketing ploy, the courts are much less willing to protect a work which is originally intended to be widely disseminated for the profit of the original author. Arguably, any link to the original work or reproduction of the original work is, in fact, a benefit to the original author rather than a burden. So, the nature of the original work appears to favor derivative fair uses.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
In considering the application of the fair use exception, the courts take into account how much of the work must be used in order to be able to identify the derivative work as satire, parody, or criticism. As Hire Jim Essian! used only one picture from the site, said picture constituting less than one-fourth of one of at least four pages on the site in total, it seems to me that the derivative work used a minimal amount of content from the copyrighted work. The derivative work’s mimicking of the pathetic tone and writing style of the original work, for similar reasons, does not constitute a significantly substantial portion of the original work. As such, the minimal use of the original copyrighted work suggests that the derivative work falls within the coverage of the fair use exception.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
At first blush, this is a difficult point to address. I am unclear as to the potential market for the copyrighted work. I would assume the original work was designed to appeal to desperate men and/or women with low self-esteem and loose moral values. The potential market for Hire Jim Essian! is intelligent, well-adjusted, realistic Cubs fans who do not believe in curses and who abhor those who do. It appears that the potential markets for each body of work could not differ more greatly, so there should be no competition for market share nor confusion of the two works by the members of each market.
Of course, this whole argument is rendered moot by the fact that the original copyrighted work was removed shortly after it was published. The moment the work was removed, the potential market was eliminated and the value of the copyrighted work was rendered worthless (though, one might argue, that was actually an increase in the value of the original work). As such, the use of the copyrighted work by Hire Jim Essian! appears to fall within the statutory definition of “fair use.”
If you need more convincing, I am sure you are also aware of the U.S. Supreme Court case Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 127 L.Ed.2d 500, 114 S.Ct. 1164, 1171 (1994). In that case, the Supreme Court affirmed the right of others to use copyrighted material for the purposes of criticism, parody, and the like when the accused work “adds something new, with a further purpose or different character, altering the [copyrighted work] with new expression, meaning, or message.”
Clearly, Hire Jim Essian!’s derivative work falls within the Supreme Court’s protection under Campbell. The work was written for the purposes of criticizing and parodying the community of doe-eyed, clueless Cubs fans who embrace the despicable title of “lovable loser” and who are content with sitting in the bleachers and watching the Cubs get pounded as long as the beer is cold and the women are hot. The derivative work certainly added something new to the copyrighted material by changing the meaning of the original message. The new work suggests that, perhaps, the original author should be embarrassed by his shallow attempt at capturing fifteen minutes of fame. Furthermore, it turns the original concept on its head by creating the humorous scenario of a man whose heart was broken by a “lover” (the Cubs) who seeks to find solace in the arms of beautiful women.
I am more than willing to discuss this matter with you further, if needs be. However, unless you are propounding a legal argument of which I am unaware, I will leave the image and post as-is. I consider this matter resolved.
Regards,
Bad Kermit, Esquire
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CT
StPatrick
PenFoe
BigFlax
Bocaj
Officer: We’re going to charge you with driving under the influence.
TLR: Which test did I fail?
Officer: All of them.
Imagining David Souter listening to 2 Live Crew always makes me laugh.
Would you “fucking douchebags” stop with this shit!? I don’t care who can quote the most laws or state what the other person plagiarizes. I care about BASEBALL. Kermit, I really like some of your baseball observations, but put aside your arrogance and talk about something else.
Or, you know, you could stop going back and reading this post.
Or just calm the fuck down.
In medical-speak, MR means mental retardation. Just thought it might add something. Cheap shot, yes. But something nonetheless.
Mister F.!