Lawtalkers: Fair use or not?

[Syt]

The email and below the (originally unblurred) screen capture in question:


To which Failblog replied thusly:

Dear Sir/Madam,

Thanks for writing us an email regarding the "Record Breaking Fail". Unfortunately, douchebaggy cyber-bullying emails will only bring upon you more shame on your house. I am also resisting the urge to write this email in ALL CAPS.

I believe it is the duty of FAIL Blog(TM) to call out organizations when they encourage the public to do such things as "Break the record" for the "Most Individuals Killed In A Terrorist Act". We firmly believe that our publication of your fail is protected under the concepts of fair use, commentary and non-trademark use. Please RTFM and we welcome you to teh interwebs.

Since we at FAIL Blog(TM) don't have a legal defense department, we have complied with your request to remove the trademarked term and logo from the original image. We have used the "naughty bits filter" on the image to secure your naughty, naughty, trademark assertions. However, we have posted your email so that our audience can see why we had to remove the name of the failer from the image. I hope that this is the outcome you have expected as now NO ONE WILL EVER KNOW THAT GUINNESS WORLD RECORDS LIMITED HAS FAILED.

The full legal response can be read here: icanhaz.com/legalresponse

Cheers,
FAIL Blog

Fair use or not? Can you or can you not make such screencaptures for use on your website under the Fair Use rules?

[Alatriste]

I say, the guys at Failblog weren't using the logo for their own ends, they were reproducing an screen from the original site!

I don't know a thing about the laws involved but something is seriously wrong if a trademarked logo can be used as a sort of "Invisibility Cloak" that covers the whole screen and keeps people from showing a single screen capture.

For me what Failblog did is certainly fair use, and the screen they used very much newsworthy... and repulsive too.

[The Brain]

What's the deal with internet people and puerile responses? GWRL 1 - FAIL Blog 0.

[Razgovory]

Now mind you I'm not a lawyer, but I have watched a lot of law and order episodes.  So my guess is that Failblog is in the wrong and is also hiding a murder.

[Scipio]

Classic fair use in US trademark/copyright law.  Used for commentary or criticism.

[Martinus]

Failblog.org is definitely in the right, because they are using the Mac OX Mail software. 

[Josquius]

Wow, that's dickish from Guiness.

I don't see Guiness point at all here. Good lawyery types aren't backing them too.

[Syt]

Classic fair use in US trademark/copyright law.  Used for commentary or criticism.

You could offer to defend them pro bono for the publicity. 

[DontSayBanana]

From http://www.publaw.com/fairusetrade.html

"The fair use defense if it is to be successful must meet the following requirements: (1) the author's use of the mark must accurately describe the trademark owner's product or service; (2) the author must use the mark in a non-trademark manner and not as a source identifier of the author's work; and (3) the author's use must be in good faith. "

While they've definitely satisfied the first two, I think a really good lawyer could successfully argue that the use was not in good faith and that humiliation could have been the intent. I'm with the Failblog guys, myself, but the attitude of their reply doesn't really help their case much if it comes down to a "good faith" decision.

[Alcibiades]

I just got RickRoll'D.   


I had avoided this moment for years..

[Pishtaco]

Why are they complaining about use of the logo, in particular? Aren't the words "Guinness World Records" also a trademark?

[Malthus]

From http://www.publaw.com/fairusetrade.html

"The fair use defense if it is to be successful must meet the following requirements: (1) the author's use of the mark must accurately describe the trademark owner's product or service; (2) the author must use the mark in a non-trademark manner and not as a source identifier of the author's work; and (3) the author's use must be in good faith. "

While they've definitely satisfied the first two, I think a really good lawyer could successfully argue that the use was not in good faith and that humiliation could have been the intent. I'm with the Failblog guys, myself, but the attitude of their reply doesn't really help their case much if it comes down to a "good faith" decision.

The issue seems to be whether the use was "normative use":

An author's use of a trademark for the above-referenced situations should be considered a non-confusing "nominative use" when it meets the following requirements: (1) the trademark owner's product or service must be one that is not readily identifiable without the use of the trademark; (2) the author only uses as much of the trademark as is reasonably necessary to identify the trademark owner's products or services; and (3) the author does nothing that would, in conjunction with the trademark, suggest to the reader sponsorship or endorsement by the trademark owner.

There is no concern that Failblog is being endorsed by Guiness World Records, or that Failblog is attempting to confuse consumers that Failblog's "product" is endorsed or supported by Guiness.

Here's a PDF which explores these issues:

http://www.abanet.org/litigation/committees/intellectual/roundtables/0506_outline.pdf

[The Minsky Moment]

Fair use.

[Scipio]

From http://www.publaw.com/fairusetrade.html

"The fair use defense if it is to be successful must meet the following requirements: (1) the author's use of the mark must accurately describe the trademark owner's product or service; (2) the author must use the mark in a non-trademark manner and not as a source identifier of the author's work; and (3) the author's use must be in good faith. "

While they've definitely satisfied the first two, I think a really good lawyer could successfully argue that the use was not in good faith and that humiliation could have been the intent. I'm with the Failblog guys, myself, but the attitude of their reply doesn't really help their case much if it comes down to a "good faith" decision.

Good faith doesn't mean being nice; in a contract it means honesty in fact.  In IP law, it means non-deceptively; that is, failblog is not acting as the Guinness Book of World Records, nor are they suggesting something about Guinness that is materially false.

[DontSayBanana]

Good faith doesn't mean being nice; in a contract it means honesty in fact.  In IP law, it means non-deceptively; that is, failblog is not acting as the Guinness Book of World Records, nor are they suggesting something about Guinness that is materially false.

If the information is highlighted solely to be malicious, couldn't it still be claimed that the use is in bad faith, even if it is completely true? In fact, looking at a partial list of causes for action, all I see is that if the information is true, it becomes a question of intent to inflict emotional distress instead of slander.