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
Entries (RSS)
March 26th, 2008 at 8:39 pm
No further questions, your honor.
[Reply]
March 26th, 2008 at 9:00 pm
Your post-nominal “Esquire” seems quite superfluous after such an ass-pounding. Well done.
[Reply]
March 26th, 2008 at 9:40 pm
Will frivilous litigiation mend his heart?
[Reply]
Bad Kermit reply on March 26, 2008:
Damn. Yours is better.
[Reply]
Mike D. reply on March 26, 2008:
Nice work, BTW, Kerm. I saw where a couple other other blogs also had a cached picture of this guy for the purposes of mockery. I wonder if they received the same e-mail.
[Reply]
Thrillho reply on March 27, 2008:
With Leather has removed the photo of the happy couple at Poitin Stil, but still has the photo of the douche alone prominently displayed…
http://withleather.com/post.phtml?pk=5345
March 26th, 2008 at 9:55 pm
MASSIVE APPLAUSE!
[Reply]
March 26th, 2008 at 9:58 pm
I stopped reading after “Dear Sir/Madam:”, but it was really long, so I bet it was really good.
[Reply]
PenFoe reply on March 27, 2008:
Okay, since you obviously spent a lot of time on this, and since I really have nothing better to do, I went back and read this.
Overall, it’s freaking magnificent, though I do take exception with being characterized as intelligent, well-adjusted and realistic.
Having spent significant time here, I think that’s probably a gross overstatement of most of us.
[Reply]
March 26th, 2008 at 10:00 pm
Damn, that was an impressive response. I bet Paul Sullivan would endorse your response as well.
[Reply]
March 26th, 2008 at 10:18 pm
Agreed with Chuck. Well done
[Reply]
March 26th, 2008 at 10:39 pm
Preach it, Lawya!
[Reply]
March 26th, 2008 at 10:46 pm
Can the Cubs mend his broken asshole, which was torn to pieces by Kermit’s reply?
I say no.
[Reply]
March 26th, 2008 at 11:05 pm
Impressive, to say the least.
[Reply]
March 26th, 2008 at 11:44 pm
Standing ovation.
[Reply]
March 26th, 2008 at 11:52 pm
clearly MR didn’t know who he was dealing with. you can take to mean whatever you want.
[Reply]
March 27th, 2008 at 2:14 am
Hey Kerm, am I still allowed to be a fan of HJE even if I believe in curses as a concept, but simply believe that they have nothing to do with the success of the Cubs? Hypothetically speaking?
[Reply]
March 27th, 2008 at 6:13 am
I’m proud to have you as a friend.
That was some damn fine lawyering there, Atticus.
[Reply]
March 27th, 2008 at 7:28 am
THIS WHOLE DAMN COURT IS OUT OF ORDER
[Reply]
March 27th, 2008 at 8:39 am
I want to go to Bovine…er…Law School!
[Reply]
March 27th, 2008 at 8:51 am
Well done, Standing ovation BK.
[Reply]
March 27th, 2008 at 8:56 am
Wow. Hey BK, if I ever kill anyone, I want you to represent me.
[Reply]
March 27th, 2008 at 8:59 am
Ridiculously awesome.
[Reply]
March 27th, 2008 at 9:01 am
Hey, BK, do you do speeding tickets? Can I put you on retainer?
Seriously, that was the best legalese ever written. If ever elected President, I’ll appoint you to the Supreme Court.
[Reply]
March 27th, 2008 at 9:03 am
That was breathtaking.
Metaphorically speaking, you basically slammed his dick in a drawer.
[Reply]
March 27th, 2008 at 9:08 am
http://www.canthecubsmendmyheart.com is looking for something from Hire Jim Essian! that it hasn’t shown him yet. What that is, according to a baseless email from the former, is hard to define.
[Reply]
March 27th, 2008 at 9:09 am
Bing.
[Reply]
March 27th, 2008 at 9:14 am
on a personal level, i can’t tell you how proud i am of you for finally using your grossly overpriced legal education
well played
[Reply]
Bad Kermit reply on March 27, 2008:
Womack? Why am I not surprised? You piece of shit!
How’s it going, man?
[Reply]
Slaky reply on March 27, 2008:
Tony or Pork Chop?
[Reply]
Bad Kermit reply on March 27, 2008:
The guy who locked up Sean Connery and threw away the key.
StPatrick reply on March 27, 2008:
AND tore up his pardon.
Tonker reply on March 27, 2008:
Or, “and Womack”?
March 27th, 2008 at 9:20 am
We are resorted to reading this crap? God I wish the season would just start already…
[Reply]
March 27th, 2008 at 9:30 am
So Mickey Rooney is that guy’s attorney? He’s screwed.
[Reply]
March 27th, 2008 at 9:32 am
As the immortal Slim Pickens once said “You use your tongue prettier than a $20 whore”.
An excellent explication of the fair use doctrine, counselor. I only have one problem with the piece: I believe in the curse. I really truly believe in the curse.
[Reply]
March 27th, 2008 at 10:08 am
Quite possibly my favorite post ever
[Reply]
March 27th, 2008 at 10:55 am
My only quibble is that you closed with “Regards” as opposed to “Warmest personal regards,” which as I understand it, is the literal lawyer-speak translation for “go fuck yourself.”
Other than that, brilliant, sir.
[Reply]
March 27th, 2008 at 1:04 pm
Way to quote Campbell v Aicuff-Rose (also known as 2 Live Crew goes to the Supreme Court). Not at all bad for a Notre Dame grad.
[Reply]
March 27th, 2008 at 1:52 pm
bk - all’s well down here in the land of red dirt and indian casinos, except for the fact that we can’t even keep our AA farm club from heading to the suburbs…
slaky - neither - it’s actually stinky womack, the bar owner from beautiful girls…”we’ve got apps!”
[Reply]
Slaky reply on March 27, 2008:
Sweet reference!
[Reply]
March 27th, 2008 at 6:51 pm
Well done sir. I will definitely be referring back to this post if I ever receive any similar emails for our blog. Or is that copyright infringement?
[Reply]
Bad Kermit reply on March 27, 2008:
Not at all. There’s no plagiarism in the law.
[Reply]
March 28th, 2008 at 7:20 am
March 28th, 2008 at 9:11 am
March 28th, 2008 at 9:21 am
March 28th, 2008 at 10:15 am
http://www.earnalism.com/wordpress/?p=64
[...] - Blogger threats another blogger over a screen capture, ends up getting pwned! (hirejimessian.com) [...]
[Reply]
March 28th, 2008 at 11:34 am
Wow! You are really slobbing your own cock over this, and so is everyone else.
Do you realy think you bitch-slapped a “lawyer”…?? Do you really think that an actual “lawyer” would send you an email that cites no section of the United State Code?? If MR was actually a lawyer, you would have received a cease and desist letter via certified mail with a specified deadline for removal. But…hey…go ahead and suck your own cock some more.
My question is where you plagiarized your response from? What’s your source? Did you request permission before you mildly tranformed the lanuguage to suit your needs? Did you use Wikipedia, the wonderful resource of incomplete and unreliable information??? Smart, real smart.
[Reply]
T.J. Brown reply on March 28, 2008:
“Call ‘em as I see ‘em” is brilliant. Bad Kermit obviously thought “M R” was an actual lawyer as evidenced by this line:
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.”
Bad Kermit is truly incapable of sarcasm, right?
And there would be no chance that Bad Kermit is an actual member of the Illinois bar. None. Wouldn’t that be ironic, though, huh, if “M R” was the non-lawyer and “Bad Kermit” was the actual lawyer. That would be too perfect.
What else do you have for us? Anything else you see, that you’d like to call?
[Reply]
Bad Kermit reply on March 28, 2008:
Oops. You’ve already taken care of this for me. Carry on, brother.
[Reply]
Bad Kermit reply on March 28, 2008:
Dear Mr. call ‘em as I see ‘em:
Since your e-mail address included a reference to “washlaw,” I’m going to assume that you are an attorney or at least aspire to be one. I would strongly encourage you to keep trying to pass the bar, as I am sure that the first nine times you failed it were just “bad luck.” Based on your poor reading comprehension skills, I am of the opinion that you might be able to construct a good argument for a partial refund of the tuition paid for your Washington law degree.
Please review the following excerpt:
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…
Perhaps if not a lesson in reading comprehension is not in order, maybe a lesson in sarcasm? You see, if MR was an actual lawyer, I would have assumed he would have been aware of the appropriate section of the U.S.C., and would not have sent a cease-and-desist request at all, certified or not. Upon re-reading that passage, can you see what I did there?
As you, as an attorney, are well aware, there is no plagiarism in the law. However, the legal analysis I conducted was, in fact, entirely my own work. Please feel free to use your presumably extensive background in legal research to try to disprove that statement. I can assure you, however, that Wikipedia was, at no time, used as a reference for drafting my response.
My only thought is that perhaps you’re accusing me of plagiarizing the U.S.C.? Well-constructed arguments like that may be the reason you are struggling to pass a bar or are, at best, a very, very poor attorney.
In conclusion, you are the reason so many people think all lawyers are fucking douchebags. Please cease and desist giving the good lawyers a bad name. You can expect a certified request in the mail to that effect shortly.
Warmest personal regards (I “plagiarized” that part),
Bad Kermit, Esquire
[Reply]
March 28th, 2008 at 12:27 pm
March 28th, 2008 at 12:36 pm
Kermit, give him a break Wash U. is in St. Louis. He’s probably taking law classes from The Genius, who’s obviously well-versed in DUI law.
[Reply]
Bad Kermit reply on March 28, 2008:
Is that a significant area of the law? Is that an area of the law we should be concerned with?
[Reply]
March 28th, 2008 at 1:34 pm
Officer: We’re going to charge you with driving under the influence.
TLR: Which test did I fail?
Officer: All of them.
[Reply]
March 28th, 2008 at 4:03 pm
Imagining David Souter listening to 2 Live Crew always makes me laugh.
[Reply]
March 31st, 2008 at 3:00 am
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.
[Reply]
Bad Kermit reply on March 31, 2008:
Or, you know, you could stop going back and reading this post.
Or just calm the fuck down.
[Reply]
March 31st, 2008 at 2:46 pm
In medical-speak, MR means mental retardation. Just thought it might add something. Cheap shot, yes. But something nonetheless.
[Reply]
Bad Kermit reply on March 31, 2008:
Mister F.!
[Reply]
April 3rd, 2008 at 5:39 pm
[...] was to this profane guy called Bad Kermit. Turned out it was the wrong one. The second call was to the artist formerly known as “M R.” Amazingly, his crack legal defense team hadn’t shut down Hire Jim Essian! (I think his crack [...]