Five Things to Know About Parody and Criticism Websites

The Internet has allowed everyone to voice his or her opinion. With blogs, message boards, and other forums, the town crier has been transformed into a modern journalist.  This is why parody and criticism websites have flourished throughout cyberspace.

However, many website owners are not prepared to respond to a cease and desist letter from a high-priced law firm, which may claim that the website is defamatory, infringing on intellectual property rights, and/or engaging in unfair business practices.

Receiving a cease and desist letter can be a scary experience. Unless you’ve managed to stay awake through a law school lecture, the language and principles of the letter may be difficult to comprehend. Plus, the letter will likely demand that you immediately remove content from the website or else face the legal consequences. Before drafting a response or complying with the demands of the letter, here are five things you should know about parody and criticism websites.

1. The First Amendment Protects Parody and Criticism

The First Amendment gives individuals the right to express themselves. Throughout our nation’s history, people have expressed their viewpoints through parody and criticism.  A person or entity cannot shut down your website merely because you criticize them or make fun of them.

But there are very few, if any, absolutes in law and the First Amendment is no exception.  The First Amendment does not protect defamatory content. Defamation is a false, published statement that adversely affects the reputation of an individual, group, or company. An opinion cannot be considered defamatory, but it is only an opinion if a reasonable person would think that the statement was an opinion. What is the definition of a reasonable person? Who knows, it’s whoever a judge or jury thinks it is.

To protect yourself, think about what you’re writing before publishing the content.  Don’t play loose with the facts. Make sure you can verify your statements before you hit the publish button. If you are expressing an opinion, make sure that it is clear that it is an opinion. You may even want to consider putting language on the website that clearly states that the comments are an opinion. Taking a few preventive measures before publishing the content may save you in the long run.

2. Parody and Criticism Have Been Recognized as Fair Uses

Although the content of the website may be protected as free speech, it may still be violative of another’s intellectual property rights. Courts have traditionally protected parody and criticism as fair uses. But as I have written in a previous post, whether or not something is a fair use is not always clear. If someone’s intellectual property is being used for the purposes of criticism or parody, you should first analyze (1) whether you need the content to make your point and (2) whether you are using too much of the content to make that point. Unfortunately, anytime you use someone’s intellectual property without permission, it is a calculated risk.

3. For Trademark and Unfair Competition Claims, You Have to Use the Plaintiff’s Mark in Commerce

A lot of cease and desist letters will allege trademark infringement or a violation of unfair competition laws. Under federal law, a plaintiff must prove that the defendant used the mark in commerce in connection with the sale or advertising of goods and services without the plaintiff’s consent. Thus, using a mark on a noncommercial website for the purposes of parody or criticism is likely not a trademark infringement or a violation of unfair competition laws, even if your comments may have an adverse economic effect on
the plaintiff.

4. You Need to be Careful with Your Domain Name

You need to carefully select your domain name. Some courts have found that diversion of economic activity constitutes a use in commerce, thus strengthening a plaintiff’s trademark claim. For instance, if someone typed in Peta.com expecting to go find an animal rights organization, but instead found your website which was critical of the organization, you may be liable for trademark infringement and for engaging in an unfair business practice. A website owner may be liable even if a user would instantly recognize the website was not what they were looking for.

You also need to be aware of the Anti-Cybersquatting Protection Act (“ACPA”). During the Internet Bubble, people were buying domain names without any intention of using the domain name, hoping that a large company would purchase the domain name from them.  ACPA was designed to stop and penalize such activity. An ACPA violation occurs if a defendant has (1) a bad faith intention to profit off a mark and (2) registers, traffics in, or uses a domain name that is identical or confusingly similar to a distinctive mark, identical or confusingly similar to or dilutive of a famous mark, or is a trademark protected by marks involving either the Red Cross or the Olympics.

You need to make sure consumers will not be confused by your domain name. For instance, you will have a weak case if your website is McDonalds.net. Whereas your case is much stronger if your website is McDonaldssucks.net because no reasonable consumer would believe that McDonaldssucks.net was a website authorized by Ronald McDonald.

5. Sometimes It’s All Bark and No Bite

Just like a dog should not be judged based on its bark, a cease and desist letter should not be judged solely on its strong wording. Writing a cease and desist letter is an art and good lawyers know the right buttons to push. Yet, website owners sometimes comply with the cease and desist letters simply to avoid potential litigation even when their website is legitimate parody or criticism. Unfortunately, this can lead to a chilling effect on free speech and allow the more powerful individuals and entities to dictate the conversation.

That doesn’t mean that you shouldn’t take the letter seriously.  But, if you receive a cease and desist letter, you should first evaluate the opposition’s claim before responding and contact an attorney if necessary. Parody and criticism serve a vital role in our society and the Internet is a great forum for such expression, but more so than ever it is essential that you understand the legal standards and how to respond if necessary.

Dave Owens is an attorney based in the San Francisco Bay Area.  He can be reached at dao1282@gmail.com.

Photo credit: Flickr/DonkeyHotey

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