October 17, 2005 4:48 PM PDT
Barney: I sue you, you sue me
Barney's lawyers at the New York firm of Gibney, Anthony and Flaherty sent stiff warning letters last week to Web sites displaying less-than-flattering images of the plump saurian.
"Your Web site depicts a plush Barney toy in a violent manner or position," Matthew Carlin wrote Tuesday on behalf of Lyons Partnership, which owns the Barney trademark. "We are writing to request that you remove this violent content toward Barney on your Web site."
amounts to an unlawful use
of the cartoon character.
One of the ostensibly violent sites, a site maintained by Baltimore-area programmer Rob Carlson, depicts a Barney toy suspended from the ceiling. Carlson, who has not removed the photograph, says it has been online for at least five years and nobody has complained before.
Carlin said he could not discuss his law firm's next steps in attempting to remove offensive images of Barney from the Internet. "I really can't comment," he said Monday in a brief telephone conversation.
Another letter from Carlin was directed to Stuart Frankel, who maintains the "Source of All Evil" site with a rendering of a vaguely Satanic cartoon tyrannosaur. "It is unlawful...to use this property without the permission of Lyons Partnership," Carlin wrote. "These materials must be immediately removed."
The Electronic Frontier Foundation, a San Francisco civil liberties group providing legal representation to Frankel, dismisses the legal threats as nonsense. "I think that Barney is unfortunately looking like he's becoming a recidivist in phony copyright claims," said Cindy Cohn, EFF's legal director.
In 2001, EFF took on Barney's lawyers after they sent out similar cease-and-desist letters. At the time, Cohn wrote back saying that anti-Barney screeds were protected by the First Amendment rights to publish parodies, and Barney's owners never pursued the matter further.
Since then, the EFF managed to break new legal ground by forcing voting machine maker Diebold to write a check to settle allegations of copyright misuse. "We were very happy to cash that check for $125,000 from Diebold when they made phony copyright claims," Cohn said. "I'd be happy to cash one from Barney."
Barney's lawyers have been aggressive in pursing trademark lawsuits before. They once sued the creator of a sports mascot that, as part of its performance, assaulted and generally did violence to a Barney look-alike.
But the 5th Circuit Court of Appeals ruled in 1999 that the performance was a parody and not forbidden by trademark law. "Even if young children--like the 2-year-old who had such a traumatic reaction to the downtrodden Barney--are in attendance, we would expect them to be supervised by parents who could explain the nature of the parody," the court decided.
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