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Ben Swann| August 20, 2013 | 7:13 pm
NSA Using Copyright Claims To Crush Free Speech?
Can a government agency block criticism by claiming copyright infringement? Sounds a bit ridiculous but it is happening. The NSA is effectively stopping one small business owner from criticism, claiming that by using its name he has infringed on their copyright.
Can they do that?
This is a Reality Check you won’t see anywhere else.
This is a story I had a hard time believing until I looked into it for myself. Here is the backstory.
Dan McCall is the owner of a company that makes snarky t-shirts. The company is called Liberty Maniacs. Liberty Maniacs carry a number of t-shirts dealing with lack of privacy and the growing police state. They sell on a site called www.Zazzle.com
None of it has been a problem—until Liberty Maniacs released a shirt called “The NSA.”
The image looks like the NSA logo but has a motto that is clearly a pun—“Peeping while you are sleeping”—followed by the phrase “The NSA, the only part of government that actually listens.”
Shortly after the shirt went online, www.Zazzle.com pulled the shirt from its website, sending this message: “Thank you for publishing products on Zazzle.
Unfortunately, it appears that your product, The NSA, contains content that is in conflict with one or more of our acceptable content guidelines. We will be removing this product from the Zazzle Marketplace shortly.
“Policy Notes: Design contains an image or text that may infringe on intellectual property rights. We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims.”
Dan McCall, the owner of Liberty Maniacs spoke with me via Skype and says there were multiple items dealing with the NSA that were pulled down from Zazzle.
“In terms of shirts, two, and then maybe four or five bumper stickers. Basically anything remotely relating to the NSA was taken down. So I’m not sure if that was subsequently a blanket policy that Zazzle themselves put up because they don’t want to deal with the hassle and they didn’t want to spend time interpreting each thing knowing they would run into problems or if they were plugged into NSA legal and they were watching things as they go,” says McCall.
So to be clear, McCall was using the NSA logo, the NSA claimed copyright infringement and Zazzle.com pulled the content down.
In fairness, what McCall was doing does use the official logo of a government agency. Can anyone just use that logo? Actually, yes. According to both the Electronic Freedom Foundation and the American Bar Association, “parody is recognized as a type of fair use, like other commentary and criticism, and courts recognize that a parody must often take recognizable elements from the work it comments upon.
Courts do distinguish parody from satire. Parody copies from the object it mocks…”
You can’t claim copyright infringement if your logo or image is used as part of a parody. So the next question, is this logo a parody?
According to the U.S. Supreme Court, a parody “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. Like other forms of comment or criticism, parody can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”
“According to the [U.S. Supreme] Court, a parody is the ‘use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.’ Id. at 580. Like other forms of comment or criticism, parody can provide social benefit, ‘by shedding light on an earlier work, and, in the process, creating a new one.’ Id.” –Juli Wilson Marshall, Nicholas J. Siciliano, Latham & Watkins LLP
McCall says, “I tried to visually take the most obvious direction at pointing at them that I could. It was their logo. I just tried to adulterate it a little bit and put a few jabs in there and that will be it. So it wasn’t a huge design coup and it did the job basically.”
Now, what might be the most interesting twist in this entire story is that while the NSA is claiming copyright infringement against McCall for his parody, the NSA itself is facing accusations of true copyright infringement.
Take a look at this image. This is the official NSA logo for the Prism program. Prism is, of course, the program that deals with NSA spying via email and phone records.
According to reports from England, the Prism image used here is being used without permission.
Adam Hart Davis is a well-known BBC presenter and the image belongs to him. Here is the Davis pic. As you can see, the NSA image is just Davis’ picture flipped upside down. Adam’s son, Damon, who wrote about this in the Register Newspaper, claims that the image is free for use, but a donation is requested and, at minimum, use of the image requires a link to his photo gallery and acknowledgement, none of which he has received from the NSA.
What you need to know is that because the work put out by Liberty Maniacs is clearly a parody, it is not copyright infringement. That is the easiest part of this story.
But the bigger issue here is the issue of free speech. It is a first amendment issue. McCall sees it that way as well.
“First amendment issues affect everybody and it specifically affects everybody who is expressing themselves—any artist, whether on the right or on the left or in the middle or whatever side. If you are not allowed to express yourself artistically or in many other ways, we have taken a turn for the worse,” says McCall.
Bottom line, there is no gray area here. But the NSA is a very powerful government agency. They don’t need a gray area or even to be right to get companies like Zazzle.com to cooperate.
This is why Internet piracy bills like SOPA and PIPA and CISPA are so dangerous. If those bills become law, all the feds have to do is claim copyright infringement to shut down an entire site. They don’t have to be right.
Dan McCall’s story is just a taste of what happens when government agencies decide they will enforce laws but not be subject to them.