Monday, October 24, 2005

The White House reads the Onion?

We would be utterly remiss if we failed to comment on the recent report in the New York Times (free registration required, but it's the NYT: why aren't you registered already?) on The Onion's alleged misuse of the Presidential Seal. The Onion has a regular parody of the President's weekly radio address, where it includes a copy of said seal. Associate Counsel to the President Grant Dixton took the time to scold these wags for using the seal without permission. To quote the Times:

"It has come to my attention that The Onion is using the presidential seal on its Web site," Grant M. Dixton, associate counsel to the president, wrote to The Onion on Sept. 28. (At the time, Mr. Dixton's office was also helping Mr. Bush find a Supreme Court nominee; days later his boss, Harriet E. Miers, was nominated.)

Citing the United States Code, Mr. Dixton wrote that the seal "is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement." Exceptions may be made, he noted, but The Onion had never applied for such an exception.

Onion editor Scott Dikkers offered a characteristically flippant reply, suggesting cheerfully that the White House should use the money spent preparing Mr. Dixton's letter for a tax break for satirists instead. Of course Dikkers has plenty of reason to be happy. You can't buy this kind of publicity; The Onion's status as the premier satire site has been validated both by the Times and by the White House. (And as of 10/26, CNN as well.) Everyone else who's been written about in the NYT and CNN, please raise your hands. Anyone? Anyone?

Of more practical interest is The Onion's actual legal response. As reported by the Times, The Onion's lawyers think they are in the clear because a) it's obviously a parody, and b) it's not for "commercial purposes" anyway:

"It is inconceivable that anyone would think that, by using the seal, The Onion intends to 'convey... sponsorship or approval' by the president," wrote Rochelle H. Klaskin, the paper's lawyer, who went on to note that a headline in the current issue made the point: "Bush to Appoint Someone to Be in Charge of Country."

Moreover, she wrote, The Onion and its Web site are free, so the seal is not being used for commercial purposes.

There are two problems here. First, the White House may not accept the "parody" defense; spokesman Trent Duffy replied "you can't pick and choose where you want to enforce the rules surrounding the use of official government insignia, whether it's for humor or fraud." First Amendment issues aside, that statement is of, shall we say, more than passing interest to anyone who might use it. The Watley Review used the Presidential Seal in question earlier this year. It's unlikely that Watley Review will be getting a letter from the White House, but technically it's in the same boat as The Onion, and it has far fewer lawyers.

The second part of The Onion's defense is also interesting, because it raises the question of what constitutes "commercial purposes." Let's face it: The Onion is a business. Content on the site is available for free, but they are in the business of making money. They have offices in cities around the United States; they can afford lawyers on retainer, for crying out loud. The argument that they're not using the Seal for commercial purposes seems pretty flimsy. It's analogous to suggesting that broadcast television isn't commercial, because it's "free" (if you use an antenna rather than cable or a dish). Anyone who believes that ABC, CBS and NBC are offering programming for non-commercial purposes, just out of the goodness of their hearts, please raise your hands. Anyone? Anyone?

But we may well ask where the line is drawn between "commercial" and "non." Nearly all satire sites take in at least some income, usually through Google ads if nothing else. The total may add up to less than your hosting costs, but still: you are offering content and receiving income in return. Does this make you a business? Do you feel like a business? Do you have any lawyers on hand?

Anyone else who hears from the White House, please drop us a line. We're dying to know how much time the White House staff spends surfing fake news sites, and how much presidential policy is written as a result.
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Friday, October 21, 2005

High-stakes parody: Scientology plays for keeps

Online parodies and satires are constantly treading a very fine line when using adaptations of copyrighted or trademarked material. As Check Please! noted last year, the line between "fair use" and "infringement" is a fine one and is often not 100% clear until a judge makes a decision in a court case. The most significant factor, in any event, is the target: how likely are they to bring legal action, and how deep are their pockets?

The Church of Scientology scores high on these counts, being notoriously quick to bring very aggressive legal action against virtually any activity which they perceive as impugning their organization. So webmaster Glen Stollery ought to have known that he was bear-baiting when he set up a parody site with the URL "" (now offline) that contained photoshops of Tom Cruise in a straightjacket and the infamous "Cruise electrocuting Oprah" video. Perhaps he thought he was safe since he lives in New Zealand, but as noted on Yahoo News such was not the case. The gears were set in motion, the lawyers called, and the site went down. The reason behind the action, according to Scientology lawyers, was solely the use of a close variant of the word "scientology:"

"That featured pictures of Cruise, arguably the world's most prominent Scientologist, in a straightjacket (that's bride-to-be Katie Holmes in matching restraint-wear), and a video of Cruise "kill[ing]" Oprah Winfrey with a powerful electric current, wasn't an issue, the Scientology camp maintained. It was all about the "m"--the lone letter distinguishing ScienTOMogy from Scientology."

Whether or not this is true may become clearer in coming months, as a new domain has just been registered,, with all the same videos and pictures. It also has a large disclaimer on the front page clarifying (as if this were needed) that the site is not connected in any way with the Church of Scientology. Will this protect the site if the lawyers come calling again? It's debatable. The Church could argue that the new site constitutes "dilution" of their trademark, which means that it does "damage to the trademark's reputation in the market." Balancing this is the First Amendment of course. But it remains to be seen what a judge would say in this particular instance.

Stoller claims that traffic has increased tenfold for his site as a result of the very public controversy, a claim that Alexa numbers would seem to back up. This isn't surprising. But it's doubtful that the Church of Scientology will back down.
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Monday, October 10, 2005

Separating the funny from the money

Everyone knows that The Onion is the reigning juggernaut of online satire, but not everyone knows how much this publication owes to its pre-internet roots, nor how close it came to folding when the dot-com bubble burst. There's an interesting look at the history of The Onion's expansion in the Denver Post, which chronicles the story of the Colorado franchise of the paper.

Ten years ago, when The Onion was still only available on newsstands (and not many of them), brothers Dave and Jeff Haupt bought a franchise for cheap - a one-time ten-year licensing fee of $25,000 and a mere $200 to $500 a week for rights to use The Onion's content. In turn, the Haupt brothers built a franchise with a circulation of 50,000 and revenues of $1 million a year, causing Onion editors to tear their hair out and count the minutes until the expiration of the deal (at which point they snapped up the Colorado outfit immediately).

Interestingly, the Haupts' key to success was their businesslike approach:

"The Haupts pulled it off by often being un-Onion. To win advertising dollars, they banned sex ads and scrapped stories with headlines such as "Christ Kills Two, Injures Seven In Abortion-Clinic Attack" and "Columbine Jocks Safely Resume Bullying."

Sales reps in the paper's Chicago office were known to smoke marijuana while watching Cubs games on television, Jeff Haupt said. But the Haupts and their partner, Dave Rogers, assembled a staff accustomed to power lunches."

The Onion is now borrowing many lessons learned from the Haupts to expand their hard-copy business throughout the country. There is no word, however, on whether the corporate policies on marijuana smoking on the job have been changed.
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Satire pervades the web, seeping into mailboxes and mainstream news like a spilled cup of coffee. It stains and it won't go away.

The Bitter Cup is a collaborative blog for members of HumorFeed, a collaborative of satire and humor sites that has been making trouble since 2003.