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Legal
Friday afternoon I received a volley of emails regarding my
website from my provider, Laughing Squid. After some initial
confusion about junkmail and disconnected phones, I found
out that the Charles Schwab legal department had contacted
Rackspace which had contacted Laughing Squid which had contacted
me about the “possibility of copyright infringement.”
This completely freaked me out and I’ve been trying
to figure out what exactly the issues are and how I can appropriately
respond to them. The first thing to determine is how much
trouble I am in. This in not yet a lawsuit, or even a cease
and desist order. This is simply an inquiry, which doubles
as a threat of further procedures. Basically, Charles Schwab
is hoping that the web service provider will talk me into
dropping the site. They want to know what the situation is
by Monday.
I am flattered in a bizarre way by the attention, because
I really did not imagine that such a huge corporation would
ever notice my little blog, or care about it. But at the same
time it is scary because I am just one individual artist and
obviously don’t have the legal or financial resources
to go up against Charles Schwab Inc. So my first response
is, Yes of course I will take the site down, I don’t
want to get sued. But this is my artwork, and I do claim the
right to critique our culture in its own terms. It is not
a fishing site (trying to trick clients into investing in
my company). This I can see would be morally wrong. It is
instead a parody site, mimicking the layout and design of
the schwab site in order to make a point. And I don’t
want to take it down simply because Charles Schwab doesn’t
like what I have to say.
So what exactly is the problem? First off, the domain name
needs to go, because it is “misleading” or “confusing”
although I don’t think anyone would want to invest in
“charlesspyschwab”. Their other complaint is that
the layout is the same (which is a lame complaint for such
a generic website layout) but adds to the general confusion
idea. Third is the use of specific graphics that are copyright
protected so that only they can use them. I did copy a few
of the cooler graphics from their site and choose portions
to use in mine like quotes. But maybe I need to re-word them.
I am willing to change a lot in order to avoid a copyright
suit, because I am not trying to obtain one. I just figured
that Charles Schwab wouldn’t care. Since they do care,
and they own the copyright, I’ll have to change some
things around to make it clearer that it is a parody. “Charlesspy.com”
will help a lot.
The other thing I want to do is find a way to be more covert
about the rest of the project. I think I can hide a lot of
content under a new domain where it won’t be quite so
in-their-face. But I still need to hide it. Maybe I can mask
the first page so that you really have to look. And how can
I change the graphics more so that they won’t be recognized.
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Name
change
I am
really depressed about having to change the name. I don’t
know why I am so attached to keeping the name of the project
in use. It just seems the epitome of unfairness to have
to change it. But if I change it, my chances of getting
sued are much less. This process of negotiation and learning
sucks. I feel like I am in the Matrix, trying to hide from
the bots.
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Messages
Last night I checked the messages on my home phone. I had
messages piled up there since October. That is so embarrassing.
One was from Intense Security Company regarding my domain
name. Another was from Scott B trying to track me down about
the website. Apparently they had one digit wrong in their
records. Maybe over Thanksgiving I’ll read the Castle.
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| Gorillas
Today I had my consultation with P. It was full of nightmare-like
images of gorillas, trailers, barbies and trashcans. I am
not supposed to quote anything from our discussion because
it might jeopardize something if they go after him. As a
result, my vision of a legal battle is a cross between The
Godfather Part 2 and The Lord of the Rings projected in
a very small room. I don’t feel very empowered. BART
On the BART home, I was positive that the men sitting behind
me were talking about my website. It was the Union Square
Station, which is where both P and CS have their SF office.
So it isn’t totally unreasonable to think that they
could have been discussing it. But this is also one of those
things that falls into the category of paranoia: thinking
that strangers are talking about you
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| Coffee
holder
I asked M if I could have her coffee holder. She gave it
to me. Is it now my property? Can I take a picture of it
and post it on the web? Is that a trademark violation? This
is ridiculous. I have to learn more about this stuff.
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| Prelim
Preliminary talk with P. He made sure to tell me that his
office is actually in their SF building. Also he is an investor
for CS. It just made me laugh. CS is everywhere. Even on
the exit ramp I took home the other night. |
| I
got a card
I left the recorder at home and just told myself to pay
attention. I was still nervous so I stopped by a café
for a bubble tea. Once inside I recognized this is the place,
formerly Chinese take-out, where A and I broke the sink.
Finally I ordered a two for one, which gave me, and the
girl behind me, a deal. The milk teas here are super sweet
and kinda cinnamony. I’d come again except for the
service.
Just as I opened the door to CS, a man in a tie hung out
of it, yelling “you forgot to sign!” I’m
not making this up. The guy he was yelling at was just outside
waiting for the bus, wearing a sweatshirt and backpack.
He called back “”Just stamp it.” Tie was
waving around the check. “I’ll have to ask a
supervisor, you’ll need to come in.” The bus
guy came back, trying to smile at me through his frustration.
I was enjoying the show, and trailed them in to the front
desk. A supervisor helped Tie find the stamp, and the guy
left again to catch his bus.
This created a vacuum which I and my pearl tea stepped into.
D- the man with the tie- introduced himself and we chatted
a bit about the job. He had only been there two weeks, so
there were still lots of procedural things for him to learn.
He knew lots about investment, however, and brought me up
to date on what my next steps should be. My checking account
was good but I would soon need a savings account. It wouldn’t
be worth opening an account with C-S- until I had amassed
at least $2500. Then I could do the fun stuff, like trading
and investing. I wanted to know if C-S- was still offering
the ipod plan (get a C-S- visa and get an ipod for free.)
The answer was yes and someone was even willing to find
me an application. Meanwhile I asked D- if he had a business
card.
D- didn’t have a card with his name on it, but he
did have a stack of C-S- cards made out to someone with
an MBA. He handed me one with his name and direct line on
it.
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| that
piece of paper that goes around your coffee cup
Today
S came in to the office with a cup of coffee. It had a
coffee cup holder that said “Talk to Chuck”
on it from CS. I had one of those weird experiences where
I wasn’t sure who was watching whom. I don’t
think S. knows about this project. I’m surprised she
would walk around with that logo on her coffee cup. For
a moment I wanted to ask her for it. But it would be really
weird to ask someone for the piece of paper that they are
using to keep their hand from being burned by their coffee.
I wonder where she got it. I’ll have to drop by the
cafes in the area to see if I can get one of my own. |
| Appointment
CLA
came through with a name and number.
P-V-
101 Montgomery Street 28th Floor
San Francisco, CA 94104
Call for appointment, remind him it is a referral. |
| Fair
use explained by the web
I decided
to try to do some legal research on my own. I googled “fair
use copyright” and got a nice long list of links.
Both Stanford and UT have pages on this topic.
http://fairuse.stanford.edu/copyright_and_Fair_Use_Overview
Here’s the idea: copyright restricts some usage of
material (reproduction for commercial purposes). It does
not protect against comment, criticism, or parody. This
makes sense because these uses are protected as free speech.
There is a whole other argument about reproduction for educational
purposes. This seems to revolve around course packets and
whether or not instructors are selling them. There are even
proposed guidelines for educational multimedia works, which
involves a balance of educational use and limited portions
of copyrighted material.
Here is where I think I stand on the factors which determine
fair use:
1. Transformative: has the material been transformed with
new or added meaning? The first draft of the site was pretty
direct mimicry: their layout with my added content. I am
now making a point of transforming each element that I borrow
so that is meaning is changed.
2. Nature of Work: Apparently there is more leeway to copy
from factual sources or published sources. The CS site is
both factual and published.
3. Amount and Sustainability: This seems to be where the
idea of parody comes in. In order to parody CS, I do have
to borrow something of the look of their site. My first
draft borrowed their layout & color scheme. The current
site borrows only recognizable items.
4. Effect of the use: My website is non-commercial, so it
doesn’t compete with CS. My new index page points
out that it is not CS and even includes a link back to CS
for lost clients. All this shows I guess is that I have
good intentions towards CS. This may be where the academic
use of the site could be important. |
| Intake
I talked
to C at CA lawyers. I wasn’t sure how much to say,
although their website states that the more information
you give, the easier it is to find a referral. I told her
I was interested in speaking with a lawyer about copyright
and the web. She wanted to know what my specific interest
was. I told her that the datacenter of my web service provider
had been contacted by a corporation about possible copyright
infringement. I was hesitant, I guess, because I am embarrassed
about being in trouble. She asked me, “Do you know
the name of the corporation?” That made me laugh.
I realized I needed to spill the story. So I explained that
I am an artist and that my website is an art project which
parodies CS. She wanted to know if the webiste was the
project or if the photos posted on the website were the
project. Well that is a hard line to draw but if I had to
I would say both. |
| Crossing
the threshold
Today
I tried to get a business card. It was an important moment,
crossing the threshold, but I didn’t accomplish much.
Actually I kind of freaked out and left after pocketing
a pamphlet. I talked to the receptionist, who seemed nice
but confused. I told her I was a student and interested
in getting a loan. That didn’t get much of a response,
I’m not sure why. In the pamphlet it lists student
loans as one of the things they offer. |
| CLA
Called
me yesterday and left a message. I called them back today
and left a message saying that I was interested in a referral
on the subject of copyright and the web. Maybe I should
look for another source of support.
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| Pretty
Poni
I have
been talking to my friends about the situation, and it seems
like everyone knows someone who has been threatened with
copyright violation. One guy had to just put a banner up
on his site saying “this site is not affiliated with
Walmart Inc.” A girl I heard of was a screen printer.
She wanted to make pink panther Tshirts and realized that
she couldn’t so instead she made Pretty Pony Tshirts.
It turns out that is a violation for someone so then she
ended up making Pretty Poni and that was OK. None of this
seems based on either law or principle at all. |
Lawyers
I called
California Lawyers for the Arts again today. I left a message,
but they didn’t call back. Maybe their database is
still down.
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