Info/Law

The passing of the Reverend Jerry Falwell will no doubt be a cause for sincere mourning among a set of individuals that, as it happens, does not include me. But on the principle that the three of us can find an Info/Law angle on practically anything (from the Super Bowl to baby naming to perfume to a rap about tax preparation software), it’s worth noting that Reverend Falwell’s legacy includes a fair amount of info/law jurisprudence — some of it surprisingly friendly towards consumers and users of digital content.

We didn’t cover Reverend Falwell’s case against Larry Flynt and Hustler Magazine (yes, that’s a perfectly work-safe link to Wikipedia — what sort of blog do you think we’re running here?) in my spring Copyright course, which in a way is too bad, since it would have given me a chance to show a clip from Milos Forman’s excellent movie, The People vs. Larry Flynt. (How many major motion pictures can you name that feature a substantial subplot involving an intellectual property dispute? Add your nominees in the comments!) Hustler published a full-page parody of a well-known advertising campaign for Campari — you can read more about the parody and see a scan of the ad (it’s admittedly tasteless, not particularly funny, and really not even terribly provocative any longer in our post-South Park world) at Wikipedia’s article on Hustler Magazine v. Falwell, in which the Supreme Court held that the First Amendment bars public figures from recovery for intentional infliction of emotional distress based on parody ads of the type Flynt produced. The intellectual property angle on the dispute, however, was effectively conveyed in just a few short lines in The People vs. Larry Flynt, in which Falwell learns that his scheme to raise money from the devout by mass-mailing copies of Flynt’s Campari parody may have backfired:

Roy Grutman: Yeah, Jerry, he’s suing you.

Jerry Falwell: He’s suing me? For heaven’s sakes, on what grounds?

Roy Grutman: Well, you xeroxed his ad, and you sent it out in a million fundraiser letters.

Jerry Falwell: Yeah, so?

Roy Grutman: But you didn’t get his permission. And that’s copyright infringement.

Jerry Falwell: The depth of his depravity sickens me.

Flynt’s copyright claim wasn’t before the Supreme Court in Hustler Magazine v. Falwell, but it did yield a nice court of appeals opinion: Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148 (9th Cir. 1986), which unfortunately doesn’t seem to be freely available online. By a vote of 2 to 1, the panel accepted Falwell’s fair use defense, even though the purpose of Falwell’s copying was clearly (indeed, solely) commercial. The court’s language gives great weight to the political and social significance of Falwell’s copying — placing Falwell in the pigeonhole more usually thought to be occupied by Flynt himself, as a defender of free expression:

Although the Defendants used the parody for a commercial purpose in the sense that they profited from copying it, they did not actually sell the copies to willing buyers. Instead the Defendants used the copies to generate moral outrage against their “enemies” and thus stimulate monetary support for their political cause. Moreover, as the district court noted, Moral Majority or Old Time Gospel Hour members would probably not be counted among Hustler’s readers. Therefore, Hustler’s creative incentives are not decreased because the Defendants are profiting from an activity that Hustler could not have taken advantage of.

796 F.2d at 1156. In a world where intellectual property issues are increasingly bound up with issues involving politics (and, indeed, “moral outrages” of various stripes), it’s good that one of the more important copyright Circuits is clearly on record as supporting fair use in this context.

If Falwell’s victory in the court of appeals in the Hustler case was a net gain for fair use, his loss in the more recent Lamparello litigation may be even more consequential for Internet users. Lamparello involved a typosquatter who registered the web site “www.fallwell.com” — adding an extra letter “L” to Falwell’s name — and posted there a critique of Reverend Falwell’s views on homosexuality. A federal district court ordered Lamparello to transfer the domain to Falwell, but the Fourth Circuit reversed, in an opinion with important consequences for free speech online. (Full disclosure: my friends and former colleagues at the Berkman Center’s Clinical Program in Cyberlaw submitted a terrific amicus brief in support of Lamparello — a brief I wholeheartedly agree with, although I had no hand in drafting it.)

The court rejected Falwell’s trademark claims on the grounds that no viewer of Lamparello’s site could possibly be misled into thinking that it was actually sponsored by or affiliated with Falwell. It also rejected the Ninth Circuit’s “initial interest confusion” theory, which effectively enlarges the reach of trademark protection online by extending it to unrelated sites offering merchandise sufficiently similar to the mark holder’s that consumers who arrive there by mistake or accident may decide to stay. Finally, and perhaps most important, the Fourth Circuit rejected Falwell’s claim under the Anticybersquatting Consumer Protection Act of 1999, finding that a “gripe site” set up to criticize a trademark holder constituted a “bona fide noncommercial or fair use” of the mark. The court’s decision was a great win for creators and users of digital content online and for free expression in general.

Filed under: Cincinnati, Copyright, Court Decisions, Internet & Society, Law School, Media, Trademarks