"We distort. You comply" - T-Shirts comparing Bill O'Reilly to Hitler (Blatant trademark violations)

Salon ^ | June 26, 2003 | Katharine Mieszkowski

[Dont Mention the War]

"We distort. You comply"
Even in a down economy, there are some business models that still work -- selling T-shirts comparing Fox News commentator Bill O'Reilly to Hitler, for example.

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By Katharine Mieszkowski

June 26, 2003  | Nothing boosts lefty T-shirt sales like an officious, bullying cease-and-desist letter from Fox News.

Agitproperties.com in Austin, Texas, sells "Faux News Channel" T-shirts that mock the Fox logo with the slogan "We distort. You comply." The company is an equal-opportunity network mocker -- it also sells "Pentagon News Network" T-shirts parodying the CNN logo.

But those two offerings are positively subtle compared to the T-shirt that puts a Hitler Youth spin on Fox fulminator Bill O'Reilly. A strapping young blond man brandishing a flag emblazoned with the words "news channel" is bracketed with the slogan "Fair and Balanced" and the title "O'Reilly Youth."

Lest anyone start thinking Bill O'Reilly has actually begun recruiting for his own fascist youth brigade, the site displays a prominent disclaimer right on the home page: "This Web site and the merchandise sold herein are parodies and as such are political satire protected by the First Amendment of the Constitution of the United States of America. Agitproperties.com is not connected with, approved or endorsed by Fox News Network LLC ..." and so on.

But Fox isn't convinced.

In a letter dated June 19, 2003, Christopher Silvestri, senior counsel for the network, accused Agitproperties.com of trademark infringement and ordered the company to stop selling the shirts. "Furthermore, the T-shirt 'O'Reilly Youth tee,' in addition to the infringements described herein, shows incredibly poor taste on your part, is highly offensive and clearly demonstrates your bad faith use of the Fox Copyrights and Trademarks," Silvestri wrote.

The guys at Agitproperties think that's pretty funny: "Now isn't that a hoot: to be accused of 'incredibly poor taste' by a representative of the network responsible for such benchmarks of good taste such as 'Temptation Island 3,' 'Joe Millionaire' and 'Stupid Behavior Caught on Tape,'" they wrote in a press release detailing the contretemps.

Richard Luckett, 46, a graphic designer in Austin -- "deep in enemy territory," he says -- started selling the shirts on street corners with his two partners, Brad First, a nightclub manager, and Rick Elms, an Austin bartender, at antiwar rallies in Washington and San Francisco earlier this year.

On their Web site, they feature links to news stories from around the world, along with incitements to buy their liberal propaganda. "I wanted to be an antidote to the mainstream U.S. media," says Luckett, who spent 20 years on the road as a merchandiser for bands like Duran Duran and Stevie Ray Vaughan.

But as Baghdad fell, so did T-shirt sales.

"After the so-called victory, all of a sudden our traffic and our sales just went to nothing. We were sitting around wondering what we should do and we got this cease-and-desist order from Fox," says Luckett.

You'd think the lawyers at Fox News were moonlighting for the marketing department of agitproperties.com.

As word of the cease-and-desist letter spread around liberal blogs, traffic to the site went from 300 people a day to 41,000. "I went from having five mentions on Google to six pages in 24 hours," says Luckett, who says that he's taken $3,000 worth of T-shirt orders in the last 24 hours.

The site has attracted so much traffic that by Thursday morning it was shut down temporarily for consuming too much bandwidth. The site was back up by Thursday afternoon.

Agitproperties.com hasn't formally responded to Fox's letter yet, but plans to. "Fox expected a tiny little company in Austin, Texas, to just roll over. This is definitely without a doubt a First Amendment issue. Americans should be free to speak their minds," says Luckett.

Robert Zimmerman, spokesperson for Fox News said only: "We don't comment on legal matters."

If Fox does decide to defend its copyright against the likes of the O'Reilly youth T-shirt in court, could the network have a case? Although the T-shirt peddlers say that they're just trying to make enough money from the shirts to keep their tiny alternative media site up and running, could they be prosecuted for profiting from Fox's trademark?

"The question is not whether they're selling the shirts for profit or not," says Fred Von Lohmann, senior staff attorney for the Electronic Frontier Foundation. "The real question is: Are people going to be confused? If you look at a T-shirt and it's clearly lampooning the trademark, no one is going to be confused. Then, the First Amendment gives you more protection.

"Trademark law is intended to protect the public from confusion," he says. "It's not intended to protect Bill O'Reilly from offensive comments about his program."

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About the writer
Katharine Mieszkowski is a senior writer for Salon Technology.

[autoresponder]

At least triple damages here is in order.

If you are stupid enough to libel someone or a corporation in print you are a fool.

If you are stupid enough to libel someone or a corporation on thousands of printed T-Shirts you are a moron.

"Punitive" and Balanced!

[drlevy88]

Regardless of whether the trademark is entitled to protection under federal law, [38] the common law, [39] or a state trademark statute, the plaintiff must prove two essential elements in order to establish that there has been infringement of his mark. First, the plaintiff must demonstrate that, without his consent, the defendant used the plaintiff's protected trademark or something substantially similar thereto. [40] Second, the plaintiff must prove that this use by the defendant created a likelihood of confusion among consumers. [41] Proof of actual confusion is not required.

From PROTECTED MARKS AND PROTECTED SPEECH: ESTABLISHING THE FIRST AMENDMENT BOUNDARIES IN TRADEMARK PARODY CASES (cyberlaw.harvard.edu)

[Robert_Paulson2]

didn't somebody sell "sore loserman"posters modeled on the dumbocrat's art and graphics the last election?

not much difference.

[per loin]

So if at a freeper rally, protesting CNN's promoting the homosexual agenda, someone was selling T-Shirts with those distinctively joined CNN letters, but with the first N replaced by an I, and underwritten with "This is SIN", you would feel that freeper to be violating CNN's rights under copyright law?

[per loin]

I suggest that the second would be a difficult case for Fox to make, unless they intend to offer proof that their consumers are inordinately stupid.

[autoresponder]

The problem of comparing:

FNC

&

CNN

is:

There are already CNN & TNN (NN)

whereas:

There is only one FNC (NC)

and pictures have been posted on the internet and products sold and delivered not for "individual parody" or "jokes" or "cartoons", but as permanent printed infringed copyright images on "walking sandwich board ad" T-Shirts for profit and also to advertise that commercial product.

Not a "swift" move, but then the lefties rarely are ethical, honest, or "swift".

Best thing is always to stay out of court and lawsuits.

Ask Bill Clinton.

Even the winner always loses.

I know from winning myself.

[autoresponder]

Correct an affirmative defense is required or the defendant loses.

Period.

In civil lawsuits only a preponderance of evidence is required by law and the jury does not have to find for the plantiff 100% of the jurors as is required in criminal cases.

[Michael121]

SORE/LOSERMAN t-shirts, bumper stickers et al. were made by a company here in Ohio. They are not an example of Corporate logo stealing. They are the perfect example of Protected political speech. The Democrat slogan is politcal advertisment and free speech is all about that. They did not use the DNC or alter that.

And that is the difference, alter a Logo of a private company and it is stealing. Parody a politician and it is protected. Both are different. I can call a senator, congressman etc.. a theif and a liar and not much can be done to me. Do that to a CEO and it can be libel or slander. Free speech is all about not being prosecuted for anti political speech. It is not freedom to print whatever you want about anybody. I cannot stand on company property and protest, but I can on public property, they are also seperate. I can get a speeding ticket on public roads not in a private parking lot. There is a distinction between what is protected.

[autoresponder]

That applied to eBay's civil lawsuit against other new tiny internet "seller's auction" for stealing the internet "look and feel" much as Microsoft, Netscape, Apple, and AOL have sued for "look and feel" outright copying; this is basically unique to the internet and to print media such as magazines and newspapers.

"Look and feel" will apply to the O'Reilly and FNC civil lawsuits, but the "Sore/Loserman 2000" bumper stickers and posters are 1st Ammendment political election campaign free speech.

It is not primarily designed or conceived to be a profit making private enterprise.

There is no unlawful intent to willfully, knowingly, and maliously defraud or libel for profit making purposes.

All the trial attorneys please line up here to dispute my logic:

[autoresponder]

Great post!

You must be relate to Miss Cleo because you just posted what I was composing basically.

I added some legal civil lawsuit court case precedents involving internet "look and feel" civil lawsuits by private commercial for profit corporations and individually owned businesses.

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[TheOtherOne]

Bottom line: Fox will win this legal matter, either in court or via the usual route, an out-of-court settlement where both sides agree never to discuss the details but will most likely entail Agitproperties handing over most, if not all, of their profits from sales of the Faux News t-shirt and removing it from sale.

100% wrong. Stop trying to play a lawyer online, it does not suit you. You may want to finsh law school first.

[TheOtherOne]

It is beyond obvious that Agitproperties is not out to "express" itself, but instead to sell t-shirts

Oh, "beyond obvious" well then, you must be right! Creating facts is always the easiest way to make a case.

[drlevy88]

Are you asserting that excerpt I posted from Harvard is incorrect? While IANAL, I don't see how it could be put much more simply. Are you saying Fox can win by just coming into court and accusing Agitproperties of creating customer confusion?

[Dont Mention the War]

100% wrong. Stop trying to play a lawyer online, it does not suit you. You may want to finsh law school first.

Let's see. No facts, no supporting documentation, just personal insults. The first and only refuge of someone with nothing relevant to say.

How tiny and sad.

[Dont Mention the War]

didn't somebody sell "sore loserman"posters modeled on the dumbocrat's art and graphics the last election? not much difference.

Regardless of the legalities of the situation (and it's generally accepted that the original Sore Loserman parody was created by FR's own Registered, for free, as a joke), it would not have been in the Gore campaign's best interest to go after anyone selling Sore Loserman merchandise because: 1) The campaign was practically over. They didn't need to protect the logo. 2) They would have looked like even bigger jerks than they already did, had they tried. 3) Suing costs money. And they needed every penny they had to spend on lawyers trying to manipulate vote counts, not go after t-shirt and button peddlers.

[Dont Mention the War]

So if at a freeper rally, protesting CNN's promoting the homosexual agenda, someone was selling T-Shirts with those distinctively joined CNN letters, but with the first N replaced by an I, and underwritten with "This is SIN", you would feel that freeper to be violating CNN's rights under copyright law?

No. Under TRADEMARK law. You would be using a private company's intellectual property against their will in order to turn a profit without giving them a penny. That's illegal.

I'm not saying I'd be on the phone to CNN's legal department to turn you in; I don't personally care. But strictly speaking, it would be against the law.

[Sandy]

Your analysis is way off. First of all, trademark infringement and trademark dilution are two different things. The shirts aren't infringements because there's no way that consumers are going to be confused into thinking that these shirts are a Fox News product. As far as dilution goes, even if the shirts do cause dilution--highly doubtful anyway--the Federal Trademark Dilution Act specifically states that noncommercial use of a trademark, i.e. non-commercial speech, shall not be actionable. For 1st Amendment purposes, non-commercial speech that happens to be packaged and sold for profit (music, art, parodies) is not the same thing as commercial speech, which is speech that proposes a commercial transaction (eg., advertisements).

[liberalnot]

just look at #6 by jesse.

[StriperSniper]

O'Reilly angers conservatives? How does he do that?

Although I am more in the libertarian camp, it is Bill's calls for the government to "do something" about 99% of the time anymore. While I may agree with him many tmes, getting the government involed would be my last resort, where O'Reilly seems to grab that club first.

[Tolerance Sucks Rocks]

In a letter dated June 19, 2003, Christopher Silvestri, senior counsel for the network, accused Agitproperties.com of trademark infringement and ordered the company to stop selling the shirts.

Waaaaaaaaaaaaaa...