Best Buy Cease And Desists Blogger For Reporting Someone Else's Parody

Ok, so there’s these guys called Improv Everywhere and they like to do mass coordinated pranks inside stores. They did one where they sent a whole bunch of people in blue polo shirts and khakis to go to Best Buy and stand around. Genius. Anyway, they made some Tshirts that parody the Best Buy logo. Unfortunately, they’re selling them, so they’re infringing on Best Buy’s intellectual copyright. They get a cease and desist letter. Fair enough. Where it gets freaky is that Laughing Squid blogged about their Tshirts, and Laughing Squid got a cease and desist letter too. Bwuh? Best Buy PR said the problem was that Laughing Squid wasn’t “reporting” but was “promoting.” Ok… So bloggers aren’t journalists now, we’re promoters? Duly noted. We’ll get right on ordering kilos of coke and cutting up our enemies and dumping them in the East River.

Best Buy Cease & Desist Letter [Laughing Squid via BingBoing]

Comments

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  1. Meg Marco says:

    Bing, hahahahaha.

  2. DallasDMD says:

    Consumerist, please cease and desist from promoting this infringement of our trademark.

    -BB Legal

  3. Namrok1 says:

    Don’t you know that big corporations are allowed to call anything they want to have control over “promotions”? Best Buy is perfectly able to call blog posts promotional in the same way that the networks call online reruns promotional. If the corporation wants something done, “promotion” is the magic word. Magic, indeed.

  4. copious28 says:

    I thought irony/satire was a legitimate use of copyright under fair use? As for the blogger, well…

  5. ConsumptionJunkie says:

    What about the First Amendment right to free speech?

  6. homerjay says:

    ” So bloggers aren’t journalists now, we’re promoters”
    I didn’t realize you were either one.

    zing!

  7. Amelie says:

    @ConsumptionJunkie:

    “Free Speech” also includes Best Buy’s right to make a fool out of themselves.

  8. ceejeemcbeegee is not here says:

    Bloggers are journalists?

  9. joemono says:

    Ben, do you think someone would find the ongoing “Morning Deals” posts journalism or promotion?

  10. gniterobot says:

    I thought bloggers were failed journalists who had no connections…

    Guess I was wrong…

  11. MoCo says:

    Now I REALLY want to buy one of those shirts!

  12. azntg says:

    Had a good laugh after reading what the Improv guys did! Keep up the good work!

  13. JustRunTheDamnBallBillick. says:

    @azntg: Really? I think things like flash mobs and those public stunts are annoying and should be against the law. I was once late to work cause some radio show idiots decided to do a stunt in the middle of traffic for 20 minutes.

  14. rjhiggins says:

    Journalists? C’mon, Ben, you work for Gawker, where nobody lets the facts get in the way of a clever, snarky post.

  15. cde says:

    @copious28: Satire is not. Parody is.
    [en.wikipedia.org]
    Atleast when it comes to Copyright Infringement, but I’m sure you can use the case as case law for Trademark dilution and parody.

  16. cde says:

    @cde: er. That’s a wiki article about the Supreme court ruling on 2 live Crew v Acuff-Rose Music, about the Oh, Pretty Woman song.

    Parody makes a commentary on the piece it is parodying. Satire, because it is making a commentary on society or culture in general, is infringing because it does not require the disputed copyright to pass on its message.

  17. weg1978 says:

    “Ok… So bloggers aren’t journalists now, we’re promoters?”

    You aren’t promoters, but you hardly qualify as reporters either.

    Cronkite…Murrow…Popken? I think not.

  18. weg1978 says:

    oops…meant to say journalists…obviously I’m not one either

  19. Copper says:

    hahaha hilarious…I work for Best Buy. We suck.

  20. nightshade74 says:

    @weg1978:

    Maybe not Murrow but “The Enquirer” “The Star” and
    what ever odd ball magazine receive 1st amendment
    protections… Why not a modern pamphleteer?

    “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” — Justice Byron White

  21. digitalgimpus says:

    At least they realize their brand looks so bad in the public eye. Downside is they now have to resort to strong arming bloggers in order to control the damage.

    Surprised?

    As mentioned earlier… you’d think that would be a clear cut example of protection under fair use as a parody. I’m no lawyer but based on this discussion:
    [www.finnegan.com]

    one would think they were protected.

  22. weg1978 says:

    @nightshade74: Understood, and a good quote, but no one is talking about depriving freedom here, and I suspect that if a ‘traditional’ outlet had been churlish enough to do what Laughing Squid did, they would have received equal treatment. Pamphleteers are fine, but there’s a distinction that education and experience brings. Think doctors, attorneys, and skilled craftsmen. I think we’re on the same page, I just get tired of self-righteous bloggers who think access to the internet somehow qualifies them as a member of the press.

  23. DjDynasty says:

    Nice Party Monster Reference!

  24. spinachdip says:

    @weg1978: For serious?

    So you’re actually suggesting that if the New York Times or NBC Nightly News or USA Today or some shit did a piece on the Improve Everywhere shirt, they can expect a C&D from Best Buy, for being “churlish”? Wow.

    And this is about depriving freedom. Best Buy is putting a chilling effect on little bloggers

    And yes, you are a journalist the moment you report, relay, provide commentary on, well, pretty much anything. You can’t just arbitrary make up definitions for a word because you don’t like little snotty bloggers getting big for their britches.

  25. D.B. Cooper-Nichol says:

    You don’t need to be a member of “the press” to be entitled to First Amendment protection. You can be a blogger, improv comedian, or kook on the street.

    (And before anyone gets all wound up about how the First A. not applying to BB, but to government action. The Amendment DOES serve as a defense to a copyright or TM infringement claim.)

    Trademark bullying is happening all too often. Many legal departments are stepping right into to this trap — sending out unfounded C&D letters, which quickly find their way online, drawing negative publicity and exponentially more attention to the very speech they wanted to silence.

  26. Counterpoint says:

    @spinachdip: lemme guess, you’re a blogger?

    This is a standard corporate move, due to the sad state of the legal system (imo). If companies don’t aggressively defend their trademarks against any infringement, they can lose the trademark altogether. Couple that with bored corporate lawyers who need to show results to be kept on, and you get some over-zealous (but not totally unnecessary) legal actions.

  27. bravo369 says:

    Isn’t there an organization of recognized journalists? if not then there should be. If you are a member then you’re a journalist. Case closed. If you’re not then you are just some guy blogging on a website. yes you have 1st amendment rights but bloggers should not be hiding behind the laws that protect journalists. Journalists are protected from revealing sources (i think) but bloggers should not be. Just my 2 cents. as for this case, bestbuy is wrong in it.

  28. Buran says:

    @ceejeemcbeegee: Yes, even if people don’t like to think about it.

  29. elislider says:

    hahah id buy one of those improv everywhere shirts. those are awesome

  30. spinachdip says:

    @Counterpoint: Not any more.

    But I’ve taken enough media law classes to pretend like I know wat I’m talking about.

    @bravo369: Why do you hate America?

  31. chili_dog says:

    There are no more journalists, just people that spew positions with varying degrees of bias.

  32. cde says:

    @bravo369: But then who should decide the standards of what a journalist is? Someone backed by a big corporation? Someone with a degree in journalism?

  33. forgottenpassword says:

    Being protected under the law still doesnt protect you from a big corporation threatening you & attempting to bury/bankrupt you with legal action.

    Sickening really.

  34. KJones says:

    Best Buy thinks they had best obey.

  35. KJones says:

    I posted the first time before seeing all the comments….

    Last year, there was the incident involving a blogger named Spocko who was using recordings of a Disney-owned radio station.

    Disney lied by claiming Spocko was using it for personal profit. What Spocko was really doing (on his unpaid and unadvertised blog) was factually point out that the Disney-owned radio station was spewing racism and the corporation was aware of it. Disney’s sole motivation was to keep their sponsors from pulling out, not how offensive the radio station was.

    [www.dailykos.com]
    [blogintegrityblogspotcom.blogspot.com]
    [www.youtube.com]

    Here is his current blog site:
    [www.spockosbrain.com]

    Disney brought Warren Zevon’s Trinity (lawyers, guns, and money) and still lost the case because Spocko was ruled to be reporting, not using the recordings for profit. The same should apply to Laughing Squid; if they don’t know, they should be made aware of it.

    Spocko’s case was about “fair use”, which is legally protected use of other’s work for commentary. Laughing Squid wasn’t even doing that much, not using Bust Buy’s “image” beyond mentioning it, so it would be an easy win if Pest Buy ever filed a lawsuit.

  36. BStu says:

    @JustRunTheDamnBallBillick.: I’m pretty sure Freedom of Assembly is in the Constitution somewhere, so I wouldn’t be too optimistic about non-violent assembly becoming illegal. Disrupting traffic is one thing, but what we’re talking about here is standing in a store.

  37. BigNutty says:

    Great Comedy Gag. I can hardly wait to see what’s next.

  38. LetMeGetTheManager says:

    The Price is Right should go after Best Buy for stealing their name tag.

  39. bravo369 says:

    @cde: I think a degree is a good start. I think it is somewhat disrespectful to real journalists who really put in the time and effort to ensure the accuracy of their reporting. Just like you’re not recognized as a doctor, lawyer, engineer without some accreditation, why would that be bad for a journalist? If a blogger can demonstrate (for example) that the website has been run for a year and can demonstrate that there’s fact checking then i have no problem recognizing them as an internet journalist but there has to be a standard to differentiate between an internet blogger/journalist and some guy with a website.

  40. hi says:

    @BRAVO369

    “Isn’t there an organization of recognized journalists? if not then there should be. If you are a member then you’re a journalist. Case closed.”

    Using those thoughts for another subject. People should not be able to sell anything unless they have a business license. This goes for ebay, yahoo, personal websites and your everyday garage sale. People don’t know enough about ‘selling’ things without a business license so they shouldn’t be allowed to do it. Case closed.

    And no I don’t actually beleive that but thats how stupid that idea is.

  41. chartrule says:

    @BRAVI369

    wikipedia states the following about journalists

    A journalist is a person who practices journalism, the gathering and dissemination of information about current events, trends, issues and people.

    Reporters are one type of journalist. They create reports as a profession for broadcast or publication in mass media such as newspapers, television, radio, magazines, documentary film, and the Internet. Reporters find sources for their work, their reports can be either spoken or written, and they are often expected to report in the most objective and unbiased way to serve the public good. A Columnist writes pieces which appear regularly in newspapers or magazines.

    Depending on the context, the term journalist also includes various types of editors and visual journalists, such as photographers, graphic artists, and page designers.

    nobody needs to be accredited / degreed to provide information

  42. chartrule says:

    going by that definition

    Ben Popken , Meghann Marco , Chris Walters ,
    Carey Greenberg-Berger ,Alex Chasick , and
    Theresa Profio

    are journalists

  43. mk says:

    @weg1978: access to the Internet doesn’t make a journalist but access to a printing press does?

  44. jeff303 says:

    @BStu: Close, it’s in the Bill of Rights (First Amendment to be exact)

  45. Morgan says:

    I was as ready as anybody to be outraged by this (I dislike Best Buy and hate Cease and Desist letters, it seemed like a winning combination), but did anyone read the original post that BB issued the Cease and Desist about? [laughingsquid.com]
    First there’s the Improv Everywhere/tag logo, then a couple of pictures of people wearing the shirts, and then the text:
    “Improv Everywhere is now selling Best Buy blue polo shirts through Neighborhoodies, inspired by their infamous Best Buy Mission. Just add a pair of kakis and you can embark on your own solo Best Buy mission.

    Here’s my write-up on last year’s wonderful Best Buy Mission.”

    It certainly reads like an advertisement rather than someone reporting; compare it to this Consumerist article on the subject. I can see why BB would call it a promotion rather than an article. I don’t know whether there’s a legal distinction between a reporter reporting on something and promoting that something, but if there is, BB may have a point here.

  46. UCLAJason says:

    I posted a similar comment to Laughing Squid.
    The question here is one of Trademark Rights. BB is not sending a cease and desist letter for the reporting. BB has a problem with the fact that the original post had a link whereby one could buy the shirts. This at least blurs the line between advertising and reporting. I can not say I know who is correct on that because the legal issue is a close one.

    As for parody. It is not clear that this is in fact a parody. The legal definition of parody in TM law is very very narrow. It focuses on whether you are parodying one specific mark or whether the parody is of a larger issue. You only get the parody defense if you can show that you had no choice but to use this mark and it must be a commentary on this mark. Unfortunately if you are parodying society at large then you can not use another’s TM. The issue here is certainly one that can be debated.

    That being said I hate best buy. As any loyal Consumerist reader knows BB is really terrible to their customers. I have not shopped there for years because they think that their customers can be walked all over. Further, even if they do have a legal claim here this just shows how companies really have no clue how to treat the public nowadays. It is too easy to get your story out for companies to treat a customer like this.

  47. Jim says:

    “They did one where they sent a whole bunch of people in blue polo shirts and khakis to go to Best Buy and stand around.”

    How could anyone tell the difference between them and legitimate employees?

    I can’t even go in my neighborhood BB anymore, I’m tired of 14 guys asking if I need help sorting through PS 2 games or finding the TVs over the course of 5 minutes.

    “No, I can read your many, large, signs, thank you! Now run along and get back to taking all the discs out of packages headed for the floor!”

  48. spinachdip says:

    @Morgan: It’s worth noting that most participants in Improv Everywhere pranks are not members of the group, but friends and fans who basically volunteer to be part of their stunts. And once the pranks are completed, members as well as non-members submit their own accounts of the events. Which is to say, just because he was part of the prank and did a write-up, doesn’t mean he stands to gain from sales of the shirt.

    As far as I can tell, Scott Beale of Laughing Squid is not an Improv Everywhere member.

  49. Beerad says:

    @Jim: “How could anyone tell the difference…” I think that was the point of the joke. However, given my dismal BB customer service experiences, that would just mean there were even more blue-shirted, khaki-pantsed folks standing around, chatting with each other, and ignoring customers.

    @spinachdip: I’m with Morgan on this one. I’m certainly no trademark expert, but I don’t think you’re required to profit from the infringement directly. The fact is that someone is generating cash by blatantly ripping off BB’s design (and it’s not much of a parody, the design is identical with a few words changed). Laughing Squid, in “reporting” on the event, is basically reporting that “hey, everyone, now you can buy these cool shirts!” Which is pretty much promoting the infringement. I don’t think any New York Times articles about trademark infringement contain a hyperlink directly to the sales page for the infringing product.

  50. Trauma_Hound says:

    Campbell v. Acuff-Rose Music look it up. Plus BB go read the constitution. Lawyers that do this kind of thing should be dis-barred.

  51. rjhiggins says:

    Quoting Wikipedia on the subject of bloggers vs. journalists is like quoting Rudy Giuliani on the subject of marital fidelity.

  52. spinachdip says:

    @Beerad: You’re right about trademark infringement – you don’t have to profit to infringe. Though the parody aspect should make trademark issues a moot point.

    As for promoting vs reporting, I’m not sure there’s any real distinction when there’s no crime involved. And it’s not atypical for “buyer’s guide”-style articles in mainstream media to link to online shops (not sure about the policy about NYT, I haven’t read the Style section in a while).

    But again, since Scott Beale/Laughing Squid is still a third party, perhaps not an impartial one, but a third party nonetheless. The blog isn’t producing or distributing the not-really-trademark infringing products.