If you tell me there’s a squabble between the U.S. Chamber of Commerce and the Electronic Frontier Foundation, my instinct is to side with EFF before I even ask what it’s about. If you tell me some group is trying to use the Digital Millennium Copyright Act to get a critical website taken down, I’m even more likely to assume it’s an abuse of the law. And yet I find myself in agreement with Mike Masnick about the current dust-up centered on prankster activists The Yes Men, whose built a fake Chamber of Commerce site to host the announcement of their ersatz press conference announcing “the Chamber’s” new position on climate change.
While we’re obviously not on the same page politically, I find a lot of what the Yes Men do pretty ingenious. But while their overall mission could reasonably described as a kind of parody—insofar as the point is for their hoaxes to ultimately be exposed—their site is not really a parody. What Adbusters does when they appropriate corporate logos and advertising imagery for their spoof ads is parody, and as such clearly entitled to invoke the fair use defense against claims of copyright or trademark infringement. But that’s because the purpose of trademark is primarily to prevent consumer confusion, and a person of ordinary intelligence who really looks at one of those fake ads will—perhaps after a moment of initial confusion or bemusement—understand it as an ironic critique of the company whose imagery is used. What the Yes Men are doing on the whole is an act of critique, but they’re not using the Chamber logo on their fake site as an act of détournement; they’re using it with the intent that readers falsely believe their press release to be genuine. It’s arguably a fairly benign form of deception in service of a larger critical point, but as a legal matter I doubt it’s entitled to a fair use exemption. And I think it muddies the waters in a potentially counterproductive way for EFF, which is a great defender of genuine parody against specious and censorious IP claims, to invoke it in a dubious case like this.
20 responses so far ↓
1 Todd Seavey // Oct 26, 2009 at 10:57 am
I wholeheartedly agree — and it’s not surprising the Yes Men feel exempt from the rules of ethics, such as telling the truth, that bind the rest of us, given what sanctimonious assholes they are (I spoke to one of the two head honchos in a bar here in NYC once).
If a fraud case is brought against them for trying to make people think the fake issue of _New York Post_ their cronies handed out in NYC during a climate conference last month was real, I hope witnesses will note that the eco-flunkies handing out the papers were saying “Free _New York Post_…free copy of the _New York Post_…” etc. — not, for example, “Joke newspaper!” or “Left-wing propaganda fueled by poorly-grasped science!”
2 Not All Your Hoaxes Involve Balloons And Boys « Around The Sphere // Oct 26, 2009 at 12:19 pm
[…] #2: Julian Sanchez Possibly related posts: (automatically generated)Bill Murrary Iffy on ’Ghostbusters 3’; […]
3 Jesse Walker // Oct 26, 2009 at 2:54 pm
But the Chamber isn’t making a trademark claim. It’s making a copyright claim. I assume this is because it’s issuing a takedown notice under the DMCA, which doesn’t protect trademark owners, just copyright owners; but it makes its legal claims much dicier.
4 Drew // Oct 28, 2009 at 4:42 pm
Honestly not sure what I think about this. When its one company trying to confuse consumers in order to make money off a brand, I can certainly see harm and exploitation we might want to think about making subject to civil action.
But these guys pretty literally want to confuse people purely for the purposes of… confusing people. They want to lie and mislead because they enjoy lying and misleading: arguably as a means of parodying civil society itself. Is that unethical? Probably. But I’m not sure its something that should be subject to civil action in the same way it would if they were misusing the logos to defraud consumers.
5 Barry // Oct 28, 2009 at 9:14 pm
Todd Seavey
“… “Left-wing propaganda fueled by poorly-grasped science!””
Since climate changes is supported by an overwhelming majority of those scientists who know WTF they’re talking about, perhaps you’re referring to the Chamber’s reports?
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