In May 2002 I
received the following email forwarded to me from
USE OF PRICELESS
Dear Mr. xxxxx:
We are the attorneys for MasterCard
Since at least as
early 1997, MasterCard has aired a series of television
and print advertisements that feature the names
and/or images of a series of goods or services
purchased by one or more individuals and which,
with either voice-overs and/or other visual displays,
convey to the viewer the price of each of these
items (the MasterCard Priceless Advertisements").
At the end of each of the MasterCard Priceless
advertisements a phrase identifying some priceless
intangible that cannot be purchased (such as "a
day where all you have to do is breathe")
is followed by the word and/or voice over: "priceless".
MasterCard is the owner of U.S. service mark registration
for the mark "PRICELESS" (Reg. No. 2,370,508)
(the "Priceless Mark"). As a result
of MasterCard's extensive advertising, the Priceless
Mark has become associated exclusively with MasterCard's
financial services products. Indeed, MasterCard's
has applied for protection of the Priceless Mark
in numerous countries throughout the world. Furthermore,
MasterCard owns multiple U.S. copyright registrations
for the Priceless Advertisements.
It has come to our
attention that you are hosting a Web site available
at the URL http://www.orsm.net that distributes
offensive and obscene content using the format
of the MasterCard Priceless Advertisements as
well as the Priceless Mark. This material (the
"Infringing Material") blatantly copies
the sequential display of a series of items belonging
to one or more individuals, showing the "price"
of each item, and at the end, infringes, with
impunity, the Priceless Mark. Specifically, the
URL allows the viewer to select from 32 different
pages, each containing 10-15 photos, which the
viewer may enlarge. The photos include images
of nudity, oral sex, and sexual intercourse that
are obscene. All the photos include the sequential
display of a series of items belonging to one
or more individuals, showing the "price"
of each item, and concludes with the Priceless
Mark. Representative samples of the offensive
content in the URL are appended to this letter.
Please be advised
that in publishing and hosting the Infringing
Material, you have infringed MasterCard's rights
under the federal and state trademark and unfair
competition laws, under the federal and state
anti-dilution laws, and under the Copyright Act.
The Infringing Material dilutes and tarnishes
MasterCard's famous marks and holds our client
out as sponsoring this obscene material by using
the format of the MasterCard Priceless Advertisements
and prominently displaying MasterCard's Priceless
Accordingly, we demand
that you confirm immediately and no later than
Monday May 13, 2002 that you will remove the Infringing
Material from the Web site www.orsm.net and that
there will be no further publication of the Infringing
Material or any other material which infringes
masterCard's rights as set forth above.
This letter does not
constitute an exhaustive statement of MasterCard's
legal position nor is it a waiver of any of their
rights and/or remedies in this or any other matter.
Very truly yours,
Is the Orsm.net 'PRYCLESS' really
an infringement of the copyright held by MasterCard,
which allegedly owns the use of the word 'PRICELESS'
- a word that can be found in the English dictionary...??
I think not...
Let's start with the copyright law
- Title 17, United States Code, Chapter 1, Section
107: "Limitations on exclusive rights: Fair use",
provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether
the use made of a work in any particular case is a
fair use [several factors must be considered.]
The several "factors" courts
are required to consider to determine whether a use
of a copyrighted work is "fair use" or infringement
and character of the use.
In the case of the "PRYCLESS"
pictures, the purpose is parody, and it is obvious
that it is parody, rather than a confusing image that
might be thought by the public to be a genuine MasterCard
of the copyrighted work.
(the doctrine here is, some
works are considered more "important" -
and thus deserving of protection - than others. A
wholly original novel, for instance, might be afforded
more protection than, say, a newspaper article about
a public event.) We obviously consider creative expression
important, and consider our creative parody to be
just as important in its role as making social commentary
and provoking discussion among our readers.
and substantiality of the portion used in relation
to the copyrighted work as a whole.
Our parody has the "look" of a MasterCard
'PRICELESS' advertisement, but it is obvious that
MasterCard won't be using an image of someone who
has 'wet their pants' or passed out drunk on a sidewalk
in an advertising campaign any time soon. Note also
that none of the images contain a MasterCard logo
to further aid in avoiding any confusion with the
items being parodied. In addition, we are only parodising
only the amount of MasterCard's 'PRICLESS' necessary
to make it clear what is being parodied and that amount
certainly could not be considered a "substantial"
part of the whole of 'PRICELESS' campaign.
The effect of the use
upon the potential market for or value of the copyrighted
No one would ever believe
that Orsm.net PRYCLESS would aid in any way towards
reducing the use of MasterCard's products or services.
For an example of how "fair
use" is applied to cases of commercial parody
in real life, consider Leibovitz v. Paramount Pictures
Corp., (1998 U.S. App. LEXIS 2693 (2nd Cir. Feb. 19,
1998)). Briefly stated, photographer Annie Leibovitz
took a photograph of actress Demi Moore, pregnant
and in the nude, which was used as a cover for Vanity
Fair magazine. Paramount Pictures, in promoting the
movie Naked Gun 33 1/3, recreated the very famous
photograph with a body double and pasted actor Leslie
Nielsen's face on the double's body. Leibovitz sued,
claiming copyright infringement. Paramount argued
that the ad, even though it was obviously commercial
in nature, was a parody under the fair use clause.
The court found that the advertisement itself was
"sufficient commentary to qualify as parody"
and rejected arguments that parody should only be
protected when the copyright owner would prohibit
use of the original. The decision echoed a 1994 U.S.
Supreme Court decision regarding 2 Live Crew's parody
of the Roy Orbison song Pretty Woman, which firmly
established that parody is a defense against copyright
infringement claims, even in commercial situations.
Interestingly, 2 Live Crew had asked permission to
create the parody, but that permission was specifically
denied. The rap group did the parody anyway and was
sued for copyright infringement. The Supreme Court
ruled against Acuff-Rose Music, Inc., which owned
the rights to Pretty Woman.
The Orsm.net 'PRYCLESS' series
is not only parody, it is an obvious parody. Under
the clear provisions of the U.S. Copyright law's "fair
use" clause, as affirmed by federal court cases,
it is not a violation of MasterCard's [alleged] copyright
** This document
has been adapted with permission from http://www.thisistrue.com/parody.html
- another site that has had to fight with clueless