First Amendment Coalition » parody

Republican presidential candidate Ron Paul loses bid for identities of those posting online spoof

donal brown — Tue, 31 Jan 2012 18:46:32 +0000

A federal judge ruled that Republican presidential contender Ron Paul could not force YouTube and Twitter to provide the identities of whoever uploaded videos with a spoof of Ron Paul bashing former candidate Jon Huntsman for being a Chinese agent.

It is unusual for a candidate to sue in these matters given the courts’ tolerance of robust give and take in presidential campaigns, writes Jeff Roberts in paidContent. -db

From a commentary in paidContent, January 26, 2012, by Jeff Roberts.

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First Amendment Center protests Indiana lawmaker’s attempt to censor ‘non-traditional’ versions of national anthem

donal brown — Thu, 05 Jan 2012 18:02:56 +0000

The First Amendment guarantees that the government not regulate the expression of those who sing “off tune” argues Gene Policinski, executive director of the First Amendment Center.

That someone might offend someone else by doing a non-traditional rendition of the national anthem should not be grounds for censorship writes Policinski. -db

From a commentary for the First Amendment Center, January 4, 2012, by Gene Policinski.

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Free speech: Peabody Energy objects to parody

donal brown — Mon, 16 May 2011 17:48:35 +0000

Peabody Energy was not amused by a website that offered a free inhaler to any family within 200 miles of a coal plant and wrote a letter demanding that its name be removed from the website.

EFF attorney Carynne McSherry pointed out the weakness in Peabody’s position, “The legal analysis is not hard: the trademark fair use doctrine and the First Amendment both protect the use of Peabody’s trademarks as a necessary part of political commentary. Moreover, the site was entirely noncommercial and several courts have held that noncommercial uses are exempt from federal trademark infringement claims (and for you law geeks, they are also statutorily exempt from dilution claims).” -db

From a commentary for the Electronic Frontier Foundation, May 13, 2011, by Corynne McSherry.

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Free speech: Electronic Frontier Foundation warns against California law undermining parody

donal brown — Mon, 23 Aug 2010 18:15:16 +0000

A new “E-Personation” bill now in the California legislature would make it a crime to personate someone online to “harm” that person. EFF claims that the law would severely restrict online parodies criticizing government and big corporations. -db

Electronic Frontier Foundation
Commentary
August 22, 2010
By Corynne McSherry

A bill that could undermine a new and important form of online activism has quietly worked its way through the California legislature. If signed by the governor, the new law would make it a crime to impersonate someone online in order to “harm” that person. In other words, it could be illegal to create a Facebook or Twitter account with someone else’s name, and then use that account to embarrass that person (including a corporate person like British Petroleum or the U.S. Chamber of Commerce, or a public official).

Here’s the problem: temporarily “impersonating” corporations and public officials has become an important and powerful form of political activism, especially online. For example, the Yes Men, a group of artists and activists, pioneered “identity correction,” posing as business and government representatives and making statements on their behalf to raise popular awareness of the real effects of those entities’ activities, like the failure to DuPont to adequately compensate victims of the Bhopal disaster and the U.S. government’s destruction of public housing units in New Orleans.

These sorts of actions regularly receive widespread media coverage, sparking further public debate. Last year, the activists staged a thinly veiled hoax, presenting themselves at a press conference and on a website as the Chamber of Commerce and, in direct opposition to the Chamber’s actual position, promising to stop lobbying against strong climate change legislation. (Not amused, the Chamber promptly sued the Yes Men based on a trumped-up trademark complaint; EFF is defending the activists.)

Others have taken a similar approach, using spoof sites and identity correction to raise awareness about community issues, environmental threats, and, most recently, the historical roots of Haiti’s economic problems. Unfortunately, the targets of the criticism, like the Chamber, have responded with improper legal threats and lawsuits. It would be a shame if Senator Simitian’s bill added another tool to their anti-speech arsenal.

Proponents of the bill insist that there is no free speech problem because the new law would only apply to “credible” impersonations. That argument misses the point – identity correction depends on initial credibility, just as it also depends on prompt exposure.

What is worse, the bill is not needed. Sponsors of the bill say that victims of online harassment and defamation have little legal recourse. That’s simply not true. Laws against fraud and defamation are already on the books, and they apply online as well as offline. Moreover, judges and juries applying those laws have the benefit of an extensive body of jurisprudence aimed at limiting their impact on legitimate free speech.

We urge Governor Schwarzenegger not to sign this dangerous bill.

Copright 2010 Electronic Frontier Foundation FAC Content Use Policy

Political speech: Federal court rules satirical ads violated copyright law

donal brown — Mon, 28 Jun 2010 18:14:03 +0000

An Electronic Frontier Foundation lawyer finds fault with judges’ downgrading satire as a form of protected speech as in Henley v. DeVore in which a senatorial candidate attacked his opponent by setting his own words to two songs, “The Boys of Summer” (The Hope of November”) and “All She Wants to Do Is Dance” (“All She Wants to Do Is Tax”). -db

Electronic Frontier Foundation
Commentary
June 24, 2010
By Kurt Opsahl

In Henley v. DeVore, a federal court recently held that senatorial candidate Charles DeVore’s two political advertisements featuring the songs “The Hope of November” and “All She Wants to Do Is Tax” infringed Don Henley’s “The Boys of Summer” and “All She Wants to Do Is Dance,” ruling against DeVore’s fair use defense.

The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?

The trouble is the misguided way that some courts have distinguished “parody” from “satire” in when measuring fair use. “Parody,” in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison’s “Pretty Woman,” the Supreme Courtfound that the use was permitted. A “satire,” in contrast, involves using a work to comment on something other than the work itself.

Some courts have drawn the conclusion that “satires” are disfavored under the fair use doctrine. That’s the mistake the court made in Henley v. DeVore. The court determined that “November” was mostly a satire (with a dash of parody), and that “Tax” was a satire through and through. According to the court, if DeVore wanted to use Henley’s songs, he had to be making fun of Henley, not other politicians.

From a First Amendment point of view, this is a bizarre way to address political speech. For the court, the political purpose was a strike against fair use, because the court considered the videos to be a commercial use, seeking “publicity and campaign donations.” In contrast, the Supreme Court has recognized that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” In contexts other than copyright, a law blocking this kind of speech would have to meet the strictest First Amendment scrutiny.

So what about fair use, which is supposed to serve as a proxy for First Amendment concerns? Here, the court appears to have misunderstood the potential for market harm that is a critical part of the fair use test. The test should be informed by the purposes of copyright—ensuring that creators have adequate incentives to create—and the importance of the First Amendment.

Can anyone say that musicians like Don Henley would give up on song-writing if they knew that politicians could use their works in satires? Obviously, no one shopping for “The Boys of Summer” would say, “Hey, you know what, I’ll just watch that DeVore ad again instead.” But the court insisted DeVore prove the negative, and show that the videos would not harm the potential licensing market for Henley’s songs. The court was apparently concerned that “licensees and advertisers do not like to use songs that are already associated with a particular product or cause.”

Under that view, however, few satires will ever pass fair use muster. That would inflict far more harm on future creators than DeVore did on Henley’s works. Satire is an art form that has enriched the political process since time immemorial. In the fourth century BC, Aristophanes, a comic playwright in ancient Athens, routinely skewered politicians and influenced this early democracy. Satire has continued to play a vital role in democracies through today.

Satire is most effective when can draw from the well of society’s shared experiences, using common cultural references to leverage the commentary and reach a wider audience. It can take a known quantity, and add new meaning and message – classic characteristics of a fair use.

Fortunately, courts have increasingly begun to understand that fair use can and should apply to transformative satires. So although the judge in Henley v. DeVore got it wrong, other courts will have a chance to recognize the value of satire and fair use.

Free speech: Federal judge rules for comic for onstage jokes about in-laws

donal brown — Mon, 17 May 2010 20:12:06 +0000

A First Amendment Center director says that the First Amendment, properly understood, protects a wide range of humor, from satire and parody to editorial cartoons. -db

First Amendment Center

Opinion

May 16, 2010
By Gene Policinski

What is it about humor that all too often results in situations that decidedly are not a laughing matter?

Free speech in comedy attracts controversy as well as belly laughs, and in the case of two “South Park” television episodes this season that attempted to feature the Prophet Muhammad, even death threats.

A quick review of this ironic “laugh track”: Lenny Bruce’s run-ins with local police over his language in the 1950s and ’60s; CBS’ 1969 cancellation of the Smothers Brothers TV show, with its biting political satire against Presidents Lyndon Johnson and Richard Nixon; George Carlin’s “seven dirty words” stand-up routine that wound up at the heart of a landmark 1978 Supreme Court case; and the post-9/11 flap over Bill Maher’s wise-guy observation about terrorists and courage.

Recently there have been not-so-veiled warnings to “South Park” creators Trey Parker and Matt Stone over episodes featuring Islam’s most-revered figure. And just the other day a comedian successfully thwarted a lawsuit filed by members of her own family over jokes she used onstage about them.

Sunda Croonquist, whose stand-up comedy act makes fun of her background as a “half-black, half-Swedish” woman who marries into a Jewish family, included unflattering references to family members in live performances and on a Web site. Croonquist’s brother- and sister-in-law, and her mother-in-law, said the jokes caused them to suffer public ridicule and emotional distress.

In a lengthy April 30 ruling, U.S. District Judge Mary L. Cooper of New Jersey said the examples in the lawsuit — including Croonquist’s saying her sister-in-law’s voice sounded like “a cat in heat” and her references to her in-laws as “racist” — were just opinions, and therefore protected speech.

Jokes that need to be explained generally lose the punch in their punch lines. Judge Cooper decidedly was not reaching for a chuckle but was voicing a legal maxim when she quoted the reasoning from a 1999 court decision in saying Croonquist’s cat-in-heat joke was “mere colorful, figurative rhetoric that reasonable minds would not take to be factual.”

And opinions, being just that, can’t carry the defamatory weight of facts — a position that protects not just performers but editorial writers, bloggers, preachers, politicians, critics … just about everybody with an opinion.

The First Amendment protects a wide range of remarks related to comedy, from stand-up routines to satire to editorial cartoons to advertising.

Perhaps the most significant First Amendment case touching on humor — involving a public figure, unlike the Croonquist lawsuit — arose in 1983 when Hustlermagazine publisher Larry Flynt ran a parody describing the late Rev. Jerry Falwell’s first sexual experience as a drunken, incestuous childhood encounter with his mother in an outhouse.

Flynt successfully fought Falwell’s lawsuit all the way to the U.S. Supreme Court, where in 1988 then-Chief Justice William Rehnquist wrote: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.”

From “Saturday Night Live” skits and skewers to Jon Stewart’s nightly political commentary-as-comedy on “The Daily Show” to late-night monologues by David Letterman, Jay Leno and others that poke fun and deflate famous egos, humor is one means by which (to use one of SNL’s old gag-lines) we are free to “talk amongst ourselves” as a nation about important issues.

Even the Supreme Court is not immune to parody. The satirical print-and-online publication The Onion, published a “report” on May 3 of a fictitious court ruling, headlined “Supreme Court Upholds Freedom Of Speech In Obscenity-Filled Ruling.” A photo showed a justice flashing a middle-finger gesture purportedly aimed at those who disagreed with her constitutional views. That was accompanied by profanity-laced “comments” by other members of the Court.

Whether the editors’ goal was simply to puncture the Court’s renowned decorum with jokes in bad taste, or to use hyperbole to make a serious point about freedom of expression — or both — The Onion likely has more to fear from critics of its style and manner than from any successful threat of criminal prosecution or civil lawsuits.

And under the First Amendment, that holds true, whether it’s in-laws or Supreme Court justices who are involved. Free speech is no less protected — and no less valuable — when it makes us laugh as well as think.

Arbitrator nixes talk show host Glenn Beck’s charge that parody infringed copyright

donal brown — Tue, 10 Nov 2009 21:13:54 +0000

Online Media Daily
November 6, 2009
By Wendy Davis

Controversial talk show host Glenn Beck came up empty as a World Intellectual Property Organization arbitrator ruled that a unflattering url intended to be a parody came under the protection of the First Amendment. -DB