Liberal Comedian Sues Blogger

As someone in the public eye, I’m careful to protect my trademarks, name and likeness, and all that stuff . . . but I’m also a passionate supporter of the First Amendment, Fair Use, and everyone’s right to parody public figures and institutions. (Said the guy with the “Hello, My name is William Fucking Shatner” T-shirts in his cafefpress store.)

Now, I also understand that there’s a fundamental difference between those things I’ve just outlined above, and thinks like infringement, stealing, being an asshole, etc., and the differences are usually quite clear . . . unless your name is Garrison Keillor.

On a Tuesday night two weeks ago, the letter showed up in the mail. It is included below, so you can see for yourself the kind of verbal mastery it takes to make a legal document sound like Keillor’s forlorn nostalgic prose.

Let’s quickly review the situation: Garrison Keillor — a liberal comedian! — is threatening to sue MNspeak — some blog! — that uses a t-shirt to poke fun of his mega-gigantic media empire. You’d think we shot Guy Noir or something.

The blogger, Rex Sorgatz, called up Keillor’s lawyer, and tried to work out the misunderstanding. Rex pointed out that he was protected by the First Amendment, and the principle of Fair Use. He suggested that it probably wasn’t in Keillor’s best interests to sue him. The lawyer did his lawyer thing, and ten days later, Rex found out that Keillor is sticking with the C&D.

Rex writes,

I’ve temporarily honored the cease and desist, but haven’t decided how to proceed. Since there were only about 10 shirts left (and I had no plans on reprinting new ones), there’s no real economic reason to pursue this. And besides, let’s be clear about the scope of what we’re actually talking about: a fairly stupid t-shirt with four words on it. In an age of much bigger problems, is this really worth fighting for?

I’m not going to have to go to court and pay attorneys and deal with all the annoyance. At the end of the day, though, it’s about much more than a T-shirt. It’s everyone’s right to parody and the principle of Fair Use. It’s about not letting someone with more money and fame bully you, just because he thinks he can.

I’m pretty sure the EFF will get involved with this, and maybe the ACLU. I have always liked Garrison Keillor, and I hope that he’s just getting really bad advice from someone. I hope that he’ll realize that this is a very bad idea, and give Rex a break. I sincerely hope that Garrison Keillor changes his mind on this, so I can follow this up with Liberal Comedian Comes To His Senses.

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23 Replies to “Liberal Comedian Sues Blogger”

  1. God knows how the lawyer is presenting things to his client, though. I’m willing to give Keillor the benefit of the doubt unless it persists past his for sure knowing what the story is. If it’s for reals, then, yes, he’s a dick.

  2. I can’t believe how many of you people are falling for this scam. It’s a trademark issue, it’s not parody, and the guy has no right to make money off Keillor’s 30-year trademark even if he thinks the shirt is funny.

    Freedom of speech is not freedom from responsibility.

  3. Well, I would have posted at WWdN but the comments are turened off anymore – making a sane comment to this crap imited to here. First Amendment rights? Liberal?

    Why not add another 10 key words Wil? Why not simply say nobody has a right to defend anything, and that any public persona – and associated items – are open to attack by ANY two-bit (or 2 cent) operator?

    AND DEFINITELY – SHAME ON YOU WIL…. for falling for somebody who uses the “liberal” attack. That is way below you. Or so I thought.

    You owe a THOROUGH retraction. Not just here – but in your other blog too.

  4. Yea yea yea. Money money money. Blah blah blah. Screw humor. Screw fun. Screw a zeitgeist artifact. It’s a friggin’ joke T-Shirt. He’s not trying to create an empire, as Mr. Keillor already has. Public radio has become so commercial it is its own self-parody. Let the guy sell the shirt. He should be invited to a taping of PHC as a guest.

  5. Political divisions aside, parody (humor) is covered by the First Amendment. You guys are on the Internet. Lay off the porn for three minutes, read about what your fucking rights are and then comment intelligently. Then go back to the 3 naughty coeds.

    Jeez.

  6. On the trademark issue vs. copyright;

    Even if parody doesn’t apply, and it does, just because a word is trademarked doesn’t mean it’s removed from the english language. Correct me if I’m wrong, but I thought *the* test of trademark infringement was, in so many words, does the use of the mark lead the average person to believe that the product was made by the mark-holder. (I’m allowed to talk about Coca-cola in this post without their permission, for example, I just can’t claim “this post made by Coca-Cola.”)

    Now, is there anyone out there who would think for one second that the shirt is actually coming from Keillor? Is IQ of the average person these days so low that they can’t recognize parody for what it is?

    Oh wait…

  7. And that’s exactly why the Free Culture movement must also highlight and explain its anti-thesis, Permission Culture.

    The opposite of a free culture is a
    “permission culture”óa culture in which creators get to create only
    with the permission of the powerful (and only, with the permission of the powerfull), or of creators from the past (ie. dead creators; or creators who refuse to be criticized/improved uppon/rendered irrelevant by refusing to move towards the future/etc.).
    If we understood this change, I believe we would resist it. Not “we”
    on the Left or “you” on the Right, but we who have no stake in the
    particular industries of culture that defined the twentieth century.

    Larry Lessig, “Free Culture” p.13 (Download pdf from here. Text in italics added for clarity by me)

    In addition to its advocacacy of cultural freedom, remix culture, participatory culture, etc. A lot of people don’t get the danger; what they choose to see is only that there are these commercial rights and these commercial rights are absolute. If you people don’t get it then its our fault that you don’t get it (we gotta learn to be more clear).

    Nevermind the premise of ‘To promote the Progress of Science and useful Arts, by securing for limited Times….’ Now does that seem familiar? [And I Ain’t Even American™]

  8. Will, Keillor isn’t just a commediene, he’s a fairly serious writer and political figure too. He campained last year for Democrats around here. I live in MN and he’s a guy we all hold near and dear to our hearts because, well, they killed Wellstone and Keillor is practically all we have left. (Except for that weird Prince fella.) So please lay off Mr. Keillor’s right to sue, he also has a right to be serious, especially about his own copyrighted show, yes? You protect the empire you build – just ask Disney. Keillor’s really not all that funny anyway; more like derisive and sarcastic. He’s not that liberal either. Read his political book from last year on that subject.
    “Homegrown Democrat”.

    As far as fair use… I’ve been censored enough on Cafe Press to know that “Fair Use” isn’t nearly as common as you think.

    Whoever made that shirt isn’t a “creator”… they are someone trying to make a buck off the work of a famous person and hoping they won’t get caught, because they’re too damned lazy themselves to actually create something original.

  9. Recently I did some research on first amendment rights and parody. While I do think the shirt was funny, I don’t think it was a parody. Here’s the quick scoop (I’m not a lawyer but I just read a whole ton of case law on the topic). The First Amendment allows fair use of protected material for criticism. It doesn’t specifically allow it for parody, but the courts have interpreted (wisely) that parody is one form of criticism.

    But to be protected by the fair use clause, your use must clearly be primarily commenting on (critiquing if you will) the original work. So something funny is NOT necessarily parody. A shirt saying “A Prairie Ho Companion” is definitely funny, and is definitely based on rights-protected material. But without a context it just reads as a funny rewording of the original work and not as parody/critique.

    In simpler terms (how I’ve summarized it to myself for my uses) is to remove the funny part of the parody for the analysis (since funny isn’t protected) and focus on whether the new work critiques (comments on) the original work.

    I would think that a shirt that makes clear its critical intent would be fine. For example, “Garrison Keillor put the HO in Prairie HOme Companion” would probably be ok as its critical intent is clear. One could argue the original shirt was made with the intent to critique, but the shirt itself doesn’t do that to a casual observer. I’d read it and think the wearer was calling him/herself a companion to a Ho.

    The fact that Keillor is a public figure doesn’t weigh in here. This shirt was based on his trademark, not his name. If the shirt said “Garrison Keillor is a money grubbing liberal fool” it would be fine based on the public figure aspect (something I also unfortunately know much about as I’ve spent some time in local politics).

    I do think Keillor could have done something nicer here. He could have said “Listen, that isn’t right. But you’re a nice guy so how about I buy your last ten shirts from you and we call it a day?”

  10. This is the attorney for Mr. Garrison Keillor(TM). By using Mr. Keillor’s(TM) name in your article without his permission, you have violated his intellectual property rights.

    Mr. Keillor(TM) has every right to protect his name. The First Amendment and the Fair Use principle do not apply here, as they did not apply in Mr. Sorgatz’s case.

    Mr. Keillor(TM) demands that you CEASE and DESIST from ever using his name again, whether it be electronically, in print, or as a public utterance in casual conversation. He will grant a license to those people who want to utter his name during the act of coitus, however, for a fee. Any negotiations for this purpose will be handled by this office.

    By the way, the above is a parody of the lawyer representing Mr. Keillor (who probably doesn’t have a trademark on his name, but who knows?). Hope I don’t get sued!

  11. Rewording a catch-phrase is protected for humor. “Let’s get ready to Fumble!” is protected under parody, but, if a person tried to trademark “Lets get ready to fumble”, they could not do it. They could however make T-shits and hats with that term on it. (this is a terrible example, as the “rumble” guy probably locked up those terms as well, but you get the idea.)

    SNL could do a skit called “Prarie Ho Companion” (which is already funnier in my mind than all of last season). Even though the folks on SNL get paid for performing the skit, it is protected. To a T-shirt maker, the rules are no different (selling funny T-shirts and making money by riffing on a trademark = making money with a funny skit by riffing on a trademark)

    Here are the two non-legal relevant points. #1- this lawyer is just trying to bill hours. #2- Did GK learn anything from the fiasco that was the “fair and balanced” lawsuit? The one that did nothing act as an effective advertisement to sell the very books they were trying to stop.

    GK – Fire your lawyer. The end result of this has been/will be that 10 people don’t get these shirts, while thousands of folks will read about the story of you being petty and frivolous with the law by attacking a small fry. This could easily show up on Fox News…just so they can say “Prarie Ho Companion” on the air…

    Seriously, fire the lawyer.

  12. Sigh. Just goes to show some I have known for since High school. My Liberial friends all are down with the first addmedment till,

    1.Somebody says something they dont like.

    2.Somebody dares to question thier motives and goals.

    3. Somebody dares to make mock of the two items above.

  13. Regarding trademark of common words:

    There are some cases pending regarding Monster Cable’s pursuit of unrelated companies infringing their trademark under “we may someday decide to go into that business”. They have gone after Monster Garage & Monster House on cable (which ponied up the money), but there are some smaller outfits that are banding together to fight it. Another company with a fairly common name is also doing something simlar, but I can’t recall who. I am hoping these cases get thrown out and the offending companies duely spanked.

  14. “Whoever made that shirt isn’t a “creator”… they are someone trying to make a buck off the work of a famous person and hoping they won’t get caught, because they’re too damned lazy themselves to actually create something original.”

    So Todd Hayes’ film “SuperStar: The Karen Carpenter Story” should have been banned because the “creator” used Barbie dolls, made by the famous and serious Mattel company?

    Parody is protected, even when it makes fun of the famous and serious. In fact, especially then.

  15. Umm… I just wanna point out a nice (if somewhat partisan) essay I just found on what’s wrong with copyright today:

    “Misinterpreting Copyright” by Richard M. Stallman.

    The article’s arguments highlights how the original spirit of copyright envisioned by the Founding Fathers have been mangled by modern copyright laws, how upholding copyright solely for the “creator’s” benefit is simply wrong. And again my disclaimer, I Ain’t Even American™ :p

  16. Given how near these shirts come (maybe they pass over) to trademark infringment, it is in GK’s best interest to send the C&D letter – even if he doesn’t decide to follow up on it. One has to defend a trademark, otherwise its defense become more difficult. I’m guessing it had less to do with making this guy stop, but more with continuing to protect a trademark in the chance that a really bad infringment case comes up.

  17. This was protected parody, end of story. The only thing GK is going to get for all the money he’s paying his lawyer is a giant PR problem, one to which I already have contributed on my own blog. (And I *like* GK. Imagine what I could’ve done if I didn’t.)

  18. FYI, Iím selling my ìA Prairie Ho Companionî t-shirt on eBay. I write for MNspeak.com and am currently job-searching, i.e. broke. Itís the only shirt for sale that I know of:

    eBay link

  19. First of all, I think that Keillor (or his lawyer)is wrong. It’s parody. Whether or not the guy who makes the T-shirts is making a nickel off of them is irrelevant; people make money off of parodies every damn day. And, AFAIK (IANAL), you don’t lose a trademark just because someone infringed on it and you didn’t defend it to the death. It might be justifiable as a deterrent to infringers in a case where there would be a big market for bogus goods or services, but come on–it’s PHC, for crying out loud.

    That having been said–everyone who’s running around waving their little hands in the air and screaming about how Keillor is part of the EE-vil Empire now: Please put a cork in it. One C&D letter from his attorneys (which he may not even be aware of) doesn’t make him the equivalent of Starbucks trying to sue Kieron Dwyer into the poorhouse. Keillor has been putting the screws to Chimp & Co. for years now on his show, and that buys a lot of cred, in my book. The tendency of some progressives to kick their heroes to the curb at the first hint of imperfection or political incorrectness goes a long way toward explaining why the bad people are in charge.

  20. Geez, Wil, look at what you stirred up! ;-)

    Seriously, though. What has this lawsuit really caused?

    1. I never even heard of Garrison Keiller before this article. Now I have heard of him. Yay, publicity! But I now think he’s an oversensitive pr!ck. Yay, bad publicity!

    2. I now hate lawyers even more.

    3. I now hate how so many Americans twist the Constitution so that we can put the little guy down. I guess that’s human nature.

    4. I need to read the Constitution more. We all should.

  21. It’s a tough one from what I can see. The American Constitution is, very apparently, open to personal interpretation. Most of you are definitely going down the “It’s parody, and it’s protected by the First Amendment” line, but there are a few of you who have stated flatly that it’s not protected. This, to me, is a sign of a problem – shouldn’t something as important as the US Constitution be a little more specific than this? American Law shouldn’t really *be* open to interpretation. You should be able to say, flat, out, that these tee-shirts are either protected or they aren’t.

    But it doesn’t work like that, does it?

    At the end of the day, I think that GK is protecting his Trademarks. A smaller case like this may prevent larger cases in future. Or, maybe, if a larger case were to come up in future, how would it look if the record stated he’d let someone else get away with it in the past? I can see where he’s coming from, but I don’t think it’s worth following up. That would be insane.

    There probably aren’t any tee-shirts left, anyway.

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