SydLexia.com - The Forums :: View topic - I'm being accused of copyright infringment

Posted: Jan 09 2008 07:35 am

Here's an e-mail I just got:

Quote:

1/8/2008

Re: http://www.sydlexia.com/news/?p=275

IDENTIFIED PROBLEM: Web site uses a Nintendo trademark (Princess Peach) in
the code of the page.

Dear Syd Lexia,

We are an Internet monitoring agency representing Nintendo of America
Inc. ("Nintendo"). We are writing to ask you to stop using the Nintendo
properties in the hidden text/visible text/meta tags and/or title and/or
links of the above-referenced sexually explicit Web site. Nintendo's
customers include many children and their parents. Unauthorized use of
Nintendo trademark(s)/work(s) is harmful to those customers and will
tarnish Nintendo's reputation.

We look forward to your immediate confirmation that you have taken the
necessary steps to resolve this matter. To that end, you may email us at
StopInfringement@cyveillance.com.

Please note that these are automatic email boxes so typically no
response is sent as long as the problem is corrected.

Sincerely,
Cyveillance

So... what do I do? Parody is a protected form of free speech, and as such, the image is protected. On top of that, the image is censored. On the other hand, it's someone else's work and I probably shouldn't have been using it in the first place. On the third hand, fuck people who draw video game hentai.

Is it worth my while to ignore this?

If I tell them no, they'll start harassing Dreamhost to take my site down and possibly sue me. But legally, I don't think they have any right to. Do I fight the good fight or do I give in?

Posted: Jan 09 2008 08:37 am

Hentai isn't parody. It's a serious business sector.

Joined: Feb 24 2006 Posts: 2578

Speaking from a little experience, look very closely at the wording of the email. "We are writing to ask you to stop using the Nintendo properties..." Note that they don't demand anything or threaten any legal action.

Chances are, they know full well it's protected under the right of parody and are simply hoping that their email is enough to make you fold anyway.

Joined: Aug 24 2005 Location: Mount Holly, NJ Posts: 1062

Damn the man! Save the Empire!

Fuck em. The wording of the e-mail makes me think they know it's protected.

Joined: Dec 18 2007 Location: Face 2 Face Posts: 155

Trust me on this, you'll be fine, just say you have parody rights and freedom of speech rights and it'll blow over.

YTMND has had this happen to them four times.

Each time it blew over and nothing fucking happened. We didn't even get a message back. Scientology, LiveJasmin, Sega, Scholastic(Harry Potter), they all blew over, nothing happened. In fact during the Sega fiasco at a certain point I was beginning to think it was a hoax perpetrated by JoshCube just to start shit. I still think it was at the very least a hoax.

Don't worry about it. Just play your cards right or, heck, perhaps do nothing at all, you'll be okay.

Posted: Jan 09 2008 01:00 pm

If you do respond, be as vague as they are. And tell them you know people.

Posted: Jan 09 2008 01:38 pm

There is probably fuck all they can do about it if you don't comply, so just ignore them. I assume the worst they can do is complain to Dreamhost, who I imagine won't do anything unless you're violating their terms of service or something, and I'm sure you're not.

Posted: Jan 09 2008 01:47 pm

I'd leave it, but back up your entire site incase it gets shut down.

Posted: Jan 09 2008 04:53 pm

This is what I'm thinking of sending them back:

Dear Cyvelliance,

Thank you for your letter. We have reviewed your complaint and we regret to inform you that the image in question cannot be taken down at this time. First off, the image in question is already heavily censored. Secondly, the image is satirical and satire is protected form of free speech. We would like to draw your attention to two cases, Hustler Magazine v. Falwell and Frankel v. Lyons, in which family friendly figures (Jerry Falwell and Barney the Dinosaur) were the subject of satirical pieces featuring sexual content. In both of the cases, the courts upheld that parody is indeed free speech. Consequently, we feel that it in our best interest to disregard your request.

Sincerely,

The SydLexia.com staff

Joined: Apr 14 2006 Location: Lake Michigan Posts: 3332

If you can find the citations for those two cases it will help the image you present in your response, making it sound more official. Sites like westlaw or loislaw that can give that info (in the format of say 42 US 567 or 232 F.3d 343 for example) cost money though. You can always look them up in law books though - it helps to know the year, along with what court the decision was in.

Posted: Jan 09 2008 05:14 pm

That email looks fake to begin with. Why would nintendo need to outsource this kind of thing in the first place? It seems really weird.

Joined: Feb 24 2006 Posts: 2578

Looks pretty good. I'd say you could probably be a little less formal and a little more friendly. (i.e. be "happy to address [their] concerns.") Treat it as if it's simply a misunderstanding on their part -- as if they didn't realize it was a parody. It makes you come across as the good guy and less defensive.

Also, I wouldn't say you "cannot" take down the image, since that's not technically true. Additionally, perhaps saying you're going to "disregard" their request is a little too antagonistic.

Maybe end the email with something along the lines of "Should you have any further concerns about other possible misunderstandings, please let us know so that we can address those as well."

Joined: Feb 24 2006 Posts: 2578

erock: No.

http://washington.bizjournals.com/washington/stories/2000/07/31/daily13.html

Posted: Jan 09 2008 05:24 pm

Wow. Honestly that company sounds so ridiculous i thought it was one of those email scams. Well since it is real i say keep it up.

Posted: Jan 09 2008 05:53 pm

I say fuck 'em.

Joined: Dec 06 2007 Location: Connecticut Posts: 11244

We are writing to ask you to stop using the Nintendo
properties in the hidden text/visible text/meta tags and/or title and/or
links of the above-referenced sexually explicit Web site.

It doesn't say anything about the image.

Are you sure they aren't concerned about the text in the post?

You would need to be commenting or criticizing in order to use "Princess Peach".

I think that if you were to say, "Did you see how Princess Peach is drawn? She definitely looks like a whore" then that is ok because you are making a comment (or criticism... not sure). Unfortunately you can't say "Princess Peach and Bowser Fucked so hard that her vagina was able to fit over Mario's entire head." There is no criticism or commentary, it is a statement of fact, this is using someone else's work as your own.

What you could also do is slightly modify the characters name. So you could write.

Princess Peachy or Bowsor.

As far as I can tell, the image itself is probably not going to get you in trouble because you have a girl and a reptile thing named Bowsey-Kins. Unless you can prove that is Peach and Bowser, there isn't much that Nintendo can do.

I really think you should change the wording since they are correct about it.

I do not think you should remove the image though since it isn't mentioned and it isn't their characters, it is a whore and a reptile.

Posted: Jan 09 2008 06:33 pm

Stuff like this should be put in your news section, Syd.

Posted: Jan 09 2008 07:09 pm

Keep it.

Look at it this way:

If nothing happens, then all is well.

If they start shit, it will draw attention to your website and increase your traffic.

Win/Win.

Posted: Jan 09 2008 07:37 pm

Or you could just take it down and replace the image with a copy of the request, then rip on them for being twatty cunts.

Posted: Jan 09 2008 07:41 pm

Eh, I don't think anything'll happen. Just an error probably on their part. If a person actually looked at it, this thread and that mail wouldn't exist. =P

Posted: Jan 09 2008 08:53 pm

Syd Lexia wrote:

This is what I'm thinking of sending them back:

Dear Cyvelliance,

Thank you for your letter. We have reviewed your complaint and we regret to inform you that the image in question cannot be taken down at this time. First off, the image in question is already heavily censored. Secondly, the image is satirical and satire is protected form of free speech. We would like to draw your attention to two cases, Hustler Magazine v. Falwell and Frankel v. Lyons, in which family friendly figures (Jerry Falwell and Barney the Dinosaur) were the subject of satirical pieces featuring sexual content. In both of the cases, the courts upheld that parody is indeed free speech. Consequently, we feel that it in our best interest to disregard your request.

Sincerely,

The SydLexia.com staff

Amen, man.
I was just doing an AP Government review when I read this, and I'm pretty sure you'll be protected. Give 'em Hell, man!

Posted: Jan 09 2008 09:57 pm

Keep it. They'll never win anything they bring to you.

Posted: Jan 10 2008 12:07 am

You know my stance: Fight the machine!

Except whenever I'm asked to remove something *cough*brianulrichworstartprojectofalltime*cough* then I fold like a lawn chair.

Posted: Jan 10 2008 09:26 am

Peachy? Bowsor? What the hell is wrong with you?!?

Joined: Dec 06 2007 Location: Connecticut Posts: 11244

Char Aznable wrote:

Peachy? Bowsor? What the hell is wrong with you?!?

Out of everything I said, that is the part that disturbs you?

I actually think that Nintendo is correct about the misuse of their trademark, but only in the text. In a way the text is a short two sentence story with Nintendo characters. That is an infringement.

However, like I said, changing names, or adjusting the wording will fix this, and they won't be able to complain.

Hell, if you add the words "I think" to the beginning of the sentences it will work. Then you are making some commentary.

As far as I can tell, the image is just fine.

Fair Use is a very complicated guideline. I personally think it is too complicated and should be published by the government in the most simple terms so that the public knows what can and can not be done.