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February 21 2013

Makers of Firefly 'fan-game' abuse DMCA to try to silence critic. Whedonesquer The One True b!X's web host received a Digital Millennium Copyright Act request for content removal. The developer is trying to make a Firefly video game without a license via fan funding.

Can't we all just get along?! ;-)
Not to defend DarkCryo, but I'm not sure how the use of their logo in an article about them would be covered under fair use.

It makes sense in the TechDirt article, since the logo is part of the topic of conversation. But including the company's logo in an article about the company's actions (unrelated to the logo) doesn't seem like it would justify use of the logo, or that effectiveness of the article would be in any way damaged by not using the logo. Especially when it's a giant 740x416 banner of the logo.

As summarized by the Using the Trademarks of Others article that QuoterGal posted in the comments of the original post, " should never festoon your website with a company's logo (but isolated use when relevant to a discussion is OK)."

I'm also a little concerned with the assertion that they're trying to "silence a critic." Neither the TechDirt article nor the original post make it clear whether the complaint was about the entire aricle (in which case the "silence the critic" argument would be valid) or just the use of the logo (in which case it would be an exaggeration).

[ edited by RayHill on 2013-02-22 01:12 ]
The complaint -- which for the record was never a formal and official DMCA takedown request, but merely a support ticket filed with my ISP, who nonetheless then treated it like an actual takedown -- was specifically and only about the logo. So I actually agree with you, Ray Hill. Removing the logo hardly silences anyone. It is, however, extraordinarily ironic given that this entire story started in 2011 when DarkCryo decided "parody" was how to ask people for money to work on a game they didn't have the rights to.

Also the record, pressured by my host for an official takedown, Craig Redl announced to them that he'd decided not to bother. The copyright agent at Acorn is not entirely pleased.

[ edited by The One True b!X on 2013-02-22 01:19 ]
Web hosts often pull sites when complaints happen rather than risk it. The complaint here included references to attorneys about the site content, so although the web host clearly messed up, at least they didn't just delete the site.

Also, I find it crazy the folk who didn't get a license to make the game they were selling are sending copyright claims. A Firefly game would be neat, but come on.
The logo is protected under fair use. The topic at hand is the company and the logo is a representation of the company. The logo is a way to identify the company like when people use an image of a celebrity on the red carpet to go with a story of the celebrity (even though the story has nothing to do with what the celeb was doing on the red carpet).

Another example: If I write an article on Facebook (and I have) I can and did use a stock image of the Facebook logo to go with my story.
Is that logo actually a registered trademark? Because I don't believe that a logo is something you can actually get a copyright on automatically, and that instead you have to make the case based on the artwork involved. And I think if you're talking trademarks, the trademark has to be registered for the DMCA to apply. Actually, I'm not even sure that DMCA applies to trademarks at all.

Either way, it's such a BS thing for people who are playing fast & loose with other people's very definitely registered trademarks and copyrights to do. My husband had something similar happen to him when he published a blog post criticizing a prominent anti-alcohol organization which included the organization's logo. He was tempted to publish the entirety of the obnoxious cease and desist letter their lawyer sent him but then our lawyer advised us that doing that was actually a copyright violation that would allow them to shut down his site with a DMCA takedown notice.

b!X, if you're interested, I can give you the name of a very good and reasonably priced IP lawyer.

[ edited by BrewBunny on 2013-02-22 05:16 ]
That's a bunch of effing bullshiz! I mean come on DarkCryo, it's the internet...people are going to like you, hate you, complain, use images, etc. All of our sites would've been shut down years ago if there was no such thing as fair use and at that point, there would basically be no internet!

And couldn't agree more with everyone pointing out the irony of them jacking someone else's property to begin with. Wack.
RayHill: "Not to defend DarkCryo, but I'm not sure how the use of their logo in an article about them would be covered under fair use."

I worked for a HIV-related non-profit for a number of years, and in all of our publications, both digital and print, we invariably used a company's logo/trademark to identify them in any story: from large pharma to corporate donors, including small local companies on up to large entities like Disney.

Our E.D., an attorney (while admittedly not an I.P. lawyer, but likely possessing far more legal expertise than most of us here) was so sure that our use of these trademarks constituted "nominative fair use" that we never once felt the need to contact any of these companies for permission - though in almost all cases we contacted their marketing/art depts. for high-resolution logo art, which we received. Never once was there any objection to our logo use in this fashion, never once did a company ask to review an article first to see if it was favorable, and all entities mentioned in our publications received printed copies of the final publication.

The IP article referred to above, which I'd quoted on b!X' blog, also states that "nominative fair use" of a trademark or logo for the purposes of review or criticism has generally been considered a protected right:

"There is a threat, should trademark law become too robust, that companies and other trademark holders might use it to silence commentary, criticism, and unfavorable reporting. Such a 'right to control language' would offend the First Amendment and seriously undermine the quality of public debate on issues of fundamental importance. The good news is that courts have consistently protected the public's right to use the trademarks of others in order to engage in criticism, commentary, news reporting and other forms of noncommercial expression."

While most of us are not, obviously, IP attorneys, it seems at least likely that b!X' use of Dark Cryo's logo to identify them in an ongoing series of critiques falls under "nominative fair use" in an almost-textbook way (his blog was hardly "festooned" with them) and it strikes me that Dark Cryo's objection to its use in this fashion is simply to present a minor obstacle to b!X' reporting in one of the few ways they can (since they can't actually rebut his primary contentions) - sortof of the "nibbling to death by ducks" variety. It is somewhat overstated to call it a genuine attempt to silence him, which they can't do - they're just contributing the ol' nuisance factor, and it's just petty enough to be annoying.

"Fair use" protections are complicated, tangled, and generally considered to be less than transparent or simple, but it seems to me that there's just as much likelihood of the logo's being covered under them as not. Anyway, it's hardly open-and-shut that it's not.

And as some of y'all have also said, it's a move replete with a special kind of delicious irony, given the concerns that b!X has helped bring to light about the likeihood of this project's success without proper licensing, and their own lack of due diligence in dealing with 20th Century Fox' intellectual property.
I could bog down in the legalism of it, but honestly, I'm just letting the profound irony permeate the air, of a flagrant and unabashed IP abuser crying foul on an IP issue. It's actually better than Dr. "F#%^ tha police" Dre crying to Congress about piracy, because at least NWA's song wasn't about copyright law. The equitable defense of unclean hands would be a natural fit in such IP disputes.
Just weighing in as the digital manager of a city newspaper website for the last 15 years: use of logos or images of a company to accompany a story or commentary about the company is considered Fair Use for purposes of description and identification. When we wrote about BP's oil leak in the Gulf we used their logo frequently, and it didn't matter if they liked this or not.

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