March 2008 Archives

Philippe Starcke is in the news for announcing his retirement by denouncing design. Core77 has more on that; for our purposes, the accompanying photo exemplifies how the art world freely exploits pop culture trademarks.

It's a symbiotic relationship, extending beyond the art world to include charities and churches, whose appropriation of others' trademarks in the name of higher values is notorious. For the comics community, such appropriation has served in part to legitimize what had for decades been dismissed as a junk medium.

Now that sequential art has gone mainstream (insert obligatory pows, bams, etc.)--and the commodification of marks in the art and charity worlds is increasingly conspicuous beyond the narrow confines of high art--the issue of design dilution is growing more acute.

Soon I'll be starting a series of explanations on issues related to the Siegel ruling and intellectual property. As I noted in the earlier FAQ, if you have any questions, please don't hesitate the email them to me or to post them as a comment. Chances are a number of other people are wondering the same thing.

In the course of my subsequent posts, I'll also take time to tell a bit of the history behind the current controversy as well explain how creators and companies are dealing with these issues today. It's a fascinating area with lots of interesting connections.

For example, one question this morning offered a reminder that the story is not always David and Goliath. The issue: whether the Siegel case was related at all to the Abend ruling, which concerned the movie version of Rear Window based on an original short story. More about that soon enough--gotta run--but one thing worth noting is that the Abend case also involved a deceased creator and his estate . . . except in the that case, the beneficiary was a trust sending the cash to Columbia University.

Who should be able to benefit from a late creator's work? It's a highly contested issue that we'll be exploring throughout this week.

A brief moment of freeze-frame cartoon sex makes this NSFW for about three seconds, but hey, I teach this stuff so it is my work. Via Osocio, here's the perfect pick-me-up for a grey Monday morning: the Telugu condom song, a Bollywood-style PSA from India that features dancing prophylactics and a rather peppy chorus:

Those of you who know me through my work on nonprofits and social enterprise may be wondering what that has to do with comics. Patience, young padawans--all shall be revealed! In the meantime, my earlier comics-themed posts provide some clues . . .

Since the Siegel decision became public knowledge, one of the recurring fear in the comics community has been the possibility that DC Comics would not be able to publish Superman comics. Related concerns: the end of any movies and merch related to Superman.

As I indicated in last night's FAQ, DC & co. aren't "doomed," as one commenter put it. The situation just gets a bit more complicated. For the immediate future, this means ongoing litigation and negotiations in regard to profit sharing in reference to works derived from the Action #1 copyright.

As for the profit breakdown, what this entails isn't clear. The most direct candidates for inclusion are things like recent Action #1 reprints or direct artistic references to the material in that book, such as these panels in Grant Morrison's All Star Superman #10.

The situation gets far more complex when deciding what constitutes a derivative work from Action #1. Given how much of the current character is distinct from the material in that story, the amount that the Siegels should receive from new material (i.e., from April 16, 1999 onward) is open to debate.

Making this more difficult is the relation of the Action Comics #1 material to Superman trademarks. Superman trademarks include elements from the relevant copyrighted material, from aspects of Superman's uniform to certain characters to the logo, which reflects the classic Ira Schnapp design "based on Joe Shuster's concept." This is cutting-edge unresolved intellectual property law, with ramifications far beyond the comic book community. Anyone looking for an easy and immediate answer will, alas, be disappointed.

Which brings me to the assertion in the New York Times article that should the Shuster heirs regain their 50% interest in 2013,

That would give heirs of the two creators control over use of their lucrative character until until at least 2033. . . . "Time Warner couldn't exploit any new Superman-derived works without a license from the Siegels and Shusters."

Well, maybe, sort of. Keep in mind, the person being quoted above is the Siegels' lawyer, not exactly an unbiased source. In reality, the situation is far more complicated. Even if the cases didn't settle and the Shusters prevailed, the termination only applies to domestic U.S. copyright. The retention of trademark and foreign copyright by DC & co., as you can imagine, creates a far more complex situation, as does the fact that so much of the current character does not appear in the Action Comics #1 material. I'm not saying it would be easy, but there are things that Time Warner could do without a license, just as there are opportunities the creators' families couldn't exploit without dealing with Time Warner.

So is this the death of Superman? No, not at all. Instead of worrying about DC folding up, expect a settlement with both the Siegel and Shuster families, albeit perhaps one that is more favorable to them in terms of finances and the creators' recognition than might have otherwise been obtained.

UPDATE: I am expanding this FAQ in posts on Blog@Newsarama.com. Worried that Superman will have to be replaced by Madame Fatal? Want to know why Neil Gaiman isn't calling his lawyer to nab the rights to Sandman? I'll be addressing those issues and more in posts at Blog@ and covering related comics & IP themes here on Uncivil Society. Feel free to let me know your own questions and concerns.

I want to take a moment to address a few of the questions and objections raised in response to the decision awarding copyright in Action Comics #1 to Siegel heirs. This is a quick initial draft highlighting a few of main issues--if you have other questions or something seems unclear (or, gulp, wrong), feel free to comment or to contact me directly.

Q: Why are the Siegels pursuing this? Didn't Siegel and Shuster sign a contract assigning the rights to DC?

A: Yes, they did sign away all their rights in that infamous $130 contract seventy years ago. But in 1976, Congress enabled creators and their heirs to terminate the assignment of copyright executed before January 1, 1978, unless the copyright was in a work made for hire. To learn why Congress did this, read pp. 62-63 of the ruling; in brief, it was a way for creators and their heirs to re-negotiate when the value of their work was more apparent.

Q: Do the Siegels now own Superman?

A: Not completely. This decision only grants them a copyright interest in the Superman material that Siegel and Shuster created before they were employed at DC--namely, the material that appeared in Action Comics #1.

Even in regard to the Siegels' interest in Action Comics #1 and works derived from it, the Siegel heirs are at best co-owners with DC (the Shuster situation is explained in brief here). Each holder of copyright interest must account to the other for any profits gained from exploiting the copyright, and no partial copyright holder can transfer exclusive rights without consent of the others holding a copyright interest. In addition, as the court rules (pp. 63-66), under the law the Siegel heirs regain an interest only domestic--not foreign--profits.

But wait, there's more! A number of elements in the Superman "universe" (see pp. 13-14) did not appear in the first issue of Action Comics. Kryptonite, Lex Luthor, Metropolis, Beppo the Super-Monkey--none of these appear in the issue. Superman could not fly, nor does he have super-breath, heat vision or a Fortress of Solitude with an interplanetary zoo and the Bottle City of Kandor. The extent to which the Siegels' profit distribution will be affected by subsequent additions to the original material is yet unresolved.

Q: Do the Siegels have creative control over Superman comics?

A: No. The court explains, quoting an earlier case, that "each co-owner has an independent right to use or license the use of the copyright. . . . A co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright." (p. 66)

Q: What about Superboy?

A: That's a separate case, although procedurally it is consolidated with the Superman case for discovery and pre-trial purposes. The question of the Siegels' rights to Superboy is as of yet unresolved.

Q: Don't the Superman trademarks make the copyright issue irrelevant?

A: The Siegels conceded that they have no legal right to profits "purely attributable to [Superman's] trademark rights." However, they claim to be "entitled to profits from mixed trademark uses to the extent such exploit recaptured copyright elements (e.g., the 'Superman costume')." The court explains that the issue of mixed copyright/trademark accounting wasn't part of the current motion. Like other aspects of this case it's a rather complex issue that will need to be addressed in more documents filed by each side.

Q: Will the Siegels get profits from the Superman movies and merchandise?

A: That depends on a few things, one of which is the ultimate resolution of the mixed copyright/trademark issue.

In addition, there's also the issue of when a derivative work was created--the Siegels correctly conceded that they don't have an interest in profits attributable to the exploitation of pre-termination works (e.g., works created before April 16, 1999, the effective date of the termination notice). However, the court ruling does not resolve the issue of accounting for profits from pre-termination derivative works "altered so as to become post-termination derivative works." (p.67), such as, say, a special edition DVD.

Another open issue: the licensing agreements among DC, Warner Brothers Entertainment and Time Warner. As the court summarizes, "[w]hether the license fees paid represents the fair market value therefor, or whether the license for the works between the related entities was a 'sweetheart deal' are questions of fact that are not answered" in this ruling. [p.71]

Q: Why is the court even issuing a ruling now? I thought there was going to be a trial.

A: The issues in this ruling were raised as part of what are called "summary judgment" motions. If a court grants a motion for summary judgment, that means the issue is resolved without a trial.

Q: Can DC/Time Warner/Warner Brothers appeal the judge's ruling?

A: Yes, if they choose. And the federal appeals court might reverse it, although there's good reason to think it won't be flipped. This isn't over.

Q: What next?

A: More documents prepared and answered; more rulings; possibly a trial; perhaps an appeal. Ditto (except the appeal) in Superboy. The most likely final outcome in both cases: a settlement.

Q: If there are so many unresolved questions, why does this ruling matter?

A: This is a formal declaration by a U.S. court that the Siegels have regained copyright interest in Superman. However limited, it is a historic ruling, in itself a vindication of the family's and fellow creators' decades-long struggle to receive legal recognition of Siegel and Shuster's role in creating the character. Even if the Siegels settle with DC & co., they will do so with the satisfaction of knowing that a court had finally recognized Jerry's work.

The outcome strikes a chord with our fundamental sense of justice--as Journalista posted as I was writing this paragraph, "[s]ometimes the good guys do in fact win." That people feel this way is not surprising. Siegel and Shuster's creation generated an immense amount of wealth; it only seems fair that for them to benefit. Although some may object that it's too late--Siegel and Shuster have passed on--we should note that many creators work in part to provide a legacy for their families.

Last but not least, in a world where people all too often feel like cogs in a corporate machine, this ruling serves as a potent affirmation of the human spirit.

One of the most clever passages in the Superman ruling concerns the effect of early DC comics house ads on the Siegels' ability to regain a copyright interest in Action Comics #1 (Update: the New York Times talks to the principals here). The law's rather complex, but in a nutshell, the judge notes that the Siegel heirs might not have a claim in elements appearing in these ads, which DC reports as being published before Action Comics #1 was published on April 18, 1938.

Here, for example, is Superman's reported first appearance in a comic book, the inside back cover of More Fun Comics #31, which DC's copyright registration states as having been published on April 5, 1938:

Now you might think that's a slam dunk for Time Warner--after all, this is the iconic cover that introduced Superman to the world.

But here's where thinking like a lawyer can actually be a good thing. The judge refuses to characterize the image on the basis of what came later; instead, he takes it as it was back when it appeared, allegedly before Action #1 hit the stands. Nothing is there regarding the character--his origin, mission, associates, abilities, even his name. Beyond that, the image is in black and white, and the "S" on the character's chest is blurred. All of which leads to what is in this context a pyrrhic victory for Time Warner:

"The Court thus concludes that defendants may continue to exploit the image of a person with extraordinary strength who wears a black and white leotard and cape."

UPDATES: For more, check out my initial FAQ and my subsequent series on the case over at Blog@Newsarama.

This is the big one. The judge has issued a ruling in the case regarding the Siegel family's rights in Superman. It doesn't resolve all the issues--for example, this does not address the Superboy issue, which is a separate case. However, it does award the heirs copyright in the Superman material in Action Comics number 1 (the judge uses the term "Vol. 1", but that's only a reference to the first issue.).

Here's the stirring conclusion:

After seventy years, Jerome Siegel’s heirs regain what he granted so long ago – the copyright in the Superman material that was published in Action Comics Vol. 1. What remains is an apportionment of profits, guided in some measure by the rulings contained in this Order, and a trial on whether to include the profits generated by DC Comics’ corporate sibling’s exploitation of the Superman copyright.

If you read the opinion, you'll note a number of references to the treatise on copyright written by William Patry. Patry, now Google's legal counsel, offers a crisp write-up of the opinion on his blog, along with an homage to Jewish comic book creators of the golden age. The key takeaway from a legal perspective is the following:

The dramatic sounding nature of the final paragraph of the opinion has to be put in context though. The opinion doesn’t cover Shuster’s interests, which are not subject to Section 304(c) termination, but rather a future 304(d) termination. Nor does the opinion reach the work for hire question for anything after the (justly famous and important) Action Comics Vol. 1 published on April 18, 1938 – the collateral estoppel applied on work for hire only covers Action Comics Vol. 1. Finally, there are very thorny issues of apportionment. All of these issues are likely to be the subject of subsequent motions and possibly trial.

Still, despite its limited scope and remaining unfinished details, this is a historic ruling rich with symbolic significance. And in a poignant coincidence, the judge issued his order on the same day that Grant Morrison's homage to Siegel and Shuster in All Star Superman #10 hit the stands.

Bear Stearns Collapse Hurting Midtown Bars

Beware "stark nudity on slick paper!" Never before in history have we had new media capable of subjecting us to the fetishistic predations of a lustful minority!

For your Friday edification, here's classic 1965 video on how girly mags, sodomites, transvestite he-males and lesbian bestiality cultists are making our children vulnerable to the seductive lure of communism.

Oh yeah, it was produced by Charles Keating.

A local bar provides the most convincing argument I've seen for going green.

Of course, its core assumption might be refuted in a decade or so . . .

. . . of commerce. A fascinating debate is emerging in New York as Donna Karan has lost rights to the Houston & Broadway wall that has sported this iconic mural since 1992. The reason: the building was sold and the new owners have leased store space to Abercrombrie and Fitch.

The problem, of course, is that since 9/11 the mural has become a symbol not just of Donna Karan fashion, but the City itself. The pre-9/11 skyline with the Twin Towers; the integration of the City with the Statue of Liberty--this ad has come to transcend its commercial roots even more than the landmark Long Island City Pepsi sign or the Domino Sugar plant in Brooklyn.

This comment on Gothamist sums up the negative reaction:

Some very well put arguments in favor of preservation, I don't think there's much I can add. If the Hollywood sign can be landmarked, if classic neon and chrome and be preserved for future generations then surely that advert can be saved.

It's much more New York than Abercrombie and Fitch ever will.

The word "mark" has a number of discrete meanings.  Tonight in my entrepreneurship class we'll be talking about "mark" as in "trademark", a distinct symbol used to identify the source of goods or services.  However, in the trade-speak of, say carnies and pro wrestling, the word "mark" means something entirely different, denoting consumers clueless as to how they're being played. 

It's this latter sense of the word that comes to mind as I see the nonprofit and social enterprise communities react to the latest PR regarding the OpenSocial Foundation, the Google-MySpace-Yahoo nonprofit promoting an open API for online social networks.  For the do-gooder community, this is a Moment of Affirmation--Nonprofit!  Hybrid!  Open Source!  Information Revolution!   It's a party with everything except dancing Ewoks, although I expect someone to create a .gif of that soon enough.

And that's exactly what the big three expected and wanted us to do. The fact is, OpenSocial is a deliberate attempt to leverage the cultural biases of the online community against Facebook and Microsoft, not to mention online social networks popular outside the U.S. Social networks, while popular, have proven somewhat difficult to commodify.  The Foundation serves as a means to stigmatize the competition by branding it as closed and commercial, even as Google-MySpace-Yahoo leverage their own considerable market resources to profit from the work.

Mind you, I'm not criticizing GMY for doing this--it's rather savvy, and were I in management at any of these companies I'd recommend doing the same thing.  I respect the strategy in the same way I do the marketing genius of PT Barnum and Vince McMahon, both of whom used cultural psychology to build entertainment empires. 

I'm less enthused about our own recurring tendency to drink the latest Kool-Aid ladled to us in the name of higher good.  Social enterprise is supposed to be a movement characterized by business savvy, but time and again we're all-too-eager to imbue someone else's tactics with our own moral hue.

This isn't a sign that we're sophisticated; it marks us as rubes. 

A splash of cold water from Oaktree's Howard Marks.

The problem with this isn't that it's women using sex to promote a vegan lifestyle. The problem is it's lame.

“We’ve gotten a lot of men eating vegetarian, if not vegan.”

Wow, that's hot--preachy AND delusional!

Bummed out by the corporatization of charitable culture? Perhaps the antidote lies in music and dancing puppets.

White Courtesy Telephone nails it. Once I get past the current daily grind, I'll have more re my own thoughts on "a proper scientific and philosophical grounding" for metrics and social enterprise.

The number of people practicing evaluation without a license and without a proper scientific and philosophical grounding in the subject is, in my view, a scandal. Worries about evaluation, engendered in part by logic models the length of whale intestines, have become the math anxiety of the philanthropic world.

My general thesis—if I could call it that—is that from the perspective of somebody like Mr. Walker whose organization has been commissioned to conduct lucrative, large-scale evaluations of social programs (lucrative by nonprofit standards), the Impact Revolution might seem like a good thing. But from the ground, from the perspective of many people working in community-based organizations, this so-called revolution has brought with it new sources of irritation, new ways of adding meaningless make-work to already overburdened nonprofit staff members.

It has not been a people’s revolution, in other words, but rather one championed by elites—like myself, I’m afraid— unable to see far enough beyond our own measuring sticks to understand the limitations of formal evaluation techniques, and the trade-offs in staff time and other resources that these formal techniques require.

GiftHub today makes a wry observation about the rising gee-whiz generation in charity:

Is it just me or is the atmosphere stifling? I read all the giving blogs, and it seems that overall, the world is pretty nifty. With the nice young practitioners coming up through the system you can be sure, if you had a boat, and put them in charge, it would not be rocked.

As much as I admire the goodwill of those decreed by fate to kill me, I'm also concerned about the extent to which their revolutionary spirit obscures a return to the very mistakes they think they've moved past. Mutatis mutandis, of course--we're now as naive about the limits of market philanthropy as the Boomers were about the limits of government, but the end result is likely to be the same. Glib solutions to systemic problems, disillusionment with failed reforms, and some next-gen Celine Dion dunning our ears with pap songs on how their children are the future.

Via WWD, more evidence of that the environmental fad in American business may be little more than greenwashing. In related news, check out the NY Times' new article on the dubious nature of green collar jobs.

Since it's behind a firewall, here are a few illustrative highlights re the UK Advertising Standards Authority ruling:

The U.K.'s Advertising Standards Authority has banned a batch of ads by Cotton Council International, trading as Cotton USA, for making misleading claims that U.S. cotton is produced in an environmentally "sustainable" manner.

In its ruling, the ASA concluded that magazine and poster ads for Cotton USA, which state "soft, sensual and sustainable, it's Cotton USA," should "no longer appear in their current form." The judgment by the industry oversight body was made following the filing of three consumer complaints that challenged the term "sustainable."

The authority decided that as "there was no universally agreed definition of the term 'sustainable' and there appeared to be a significant division of informed opinion as to whether cotton production in the U.S. could be described as 'sustainable' or not under various available definitions, the term 'sustainable' in the CCI ad was likely to be ambiguous and unclear to consumers."

"We concluded that CCI had not justified the claim," ASA said.

One of the signal myths of internet pop-o-nomics is that digital data is costless. Yes, it can be easy to replicate without loss to the original, but that's only part of the equation.

Case in point: Google's struggle to monetize Youtube.

Google bought YouTube for $1.6 billion in 2006, but the site pulled in as little as $20 million in revenue last year according to Fortune. The problem certainly isn’t viewers — YouTube had nearly 79 million of them in January accounting for one-third of all online viewers according to comScore. . . . Fortune has some truly staggering numbers including that YouTube spends roughly $1 million a day on the bandwidth required to stream videos alone.

The implosion of subprime mortgages appears to have had little impact on social enterprise microlending. If anything, it seems to have reinforced the core assumption that homeownership for the poor is a moral right.

It's a classic example of confirmation bias. Rather than re-examining their core assumptions, social entrepreneurs are forcing new data into their pre-existing business model.

Ameliorating the negative consequences of the lending crisis is fine, but what they're doing is not business innovation. Powerpoint aside, it's traditional charity.

Earth2Tech highlights a key issue in nonprofit/for-profit hybrids: the appearance, if not reality, of conflicts of interest. Prompting this analysis: Craig Venter's entrepreneurial leveraging the for-profit/nonprofit relationship for substantial personal gain.

Folks who got into the social enterprise biz before everyone called it social enterprise may recall the controversy over Pat Robertson's making $90 million dollars from the sale of the Family Channel, which had initially been built through charitable donations. Less remembered: how that transaction loomed large in justifying the enactment of intermediate sanctions, tax penalties now imposed for excess benefit transactions.

Now that the economy is slowing, the likelihood of legal blowback is increasing.

Via The Trademark Blog

Like the original scanner, I'm a serious devotee of Soviet constructivist art. Beyond the intuitive appeal of the form, I'm fascinated by the degree to which the message in early Soviet propaganda resonates with charity today. Not surprising, really, in part due to the degree to which the ideology of Soviet production adopted the principles of Taylorism, which is also a direct ancestor of the principles that animate social entrepreneurship.

Below: engineering creates the mechanism of efficient production by supplanting the spirit of obsolete faith.

Echoing W.C. Fields, "I like children--if they're properly cooked." Go to VoidState to see how it turned out.

Social enterprise ostensibly aims to introduce the rigorous analysis found in business culture to the world of public benefit. To an extent it succeeds in doing this, except in regard to its on PR. The Darwinian rhetorical analysis of corporate texts has little place in our world--just look at the critical reaction to Allan Benamer's routine parsing of a Convio press release and you'll find reactions you'd rarely if ever encounter in the rough and tumble real world.

Today's New York Times offers another opportunity for us to think about the tentative future of social enterprise, and my bet is the real message is going to be missed. The occasion: David Brooks' opinion column on social entrepreneurship, Thoroughly Modern Do-Gooders.

If I were to give this piece the typical SE-friendly read, I'd write about how this sort of recognition is a sign that the movement has truly arrived, even if the mainstream media is actually a bit late to the game. But that's not what's really going on.

The timing is one clue. Note when the article appeared--Brooks touts the venture-capital model of philanthropy a week after the collapse of Bear Stearns exposed systemic problems in the investment world, problems that persist despite the post-bailout dead cat bounce.

Another clue: Brooks' description of social enterprise as a "decentralized" post-welfare-state movement that limits the role to government in administering social programs. If it sounds like there's a resonance here with Reagan-era public policy, you're not hearing things--that's the perspective from which Brooks speaks.

In a nutshell, what we have in Brooks' column is not an emblem of triumph for social enterprise but a signal of an ideology in retreat. Brooks is writing this now because free-market capitalism and conservative federalism are in desperate need of validation outside politics and pundits. McCain, Obama, Clinton, Congress, the mainstream media--no matter where you look, the future seems to trend more toward government control than the Reagan Revolution. In this context Brooks' appeal to social enterprise is similar to the use of charity in commercial advertising. It's an attempt to borrow goodwill--if you're not going to believe the American Enterprise Institute, listen to social entrepreneurs.

Maybe this will work, but I doubt it. Yes, Brooks is on target in linking social entrepreneurship to conservative social policy; it's a connection, in fact, that I highlighted in my recent StartingBloc talk as one of the ironies of modern progressivism. But if you pay close attention to what people are actually saying both within social enterprise and charity more generally, you'll notice that the social enterprise is old Reagan in new wineskins. Rather, it's what you might call yes-but federalism. Private social entrepreneurship is otherwise the ideal, but national health care is a necessity. Companies need to promote environmental sustainability, but the government needs to be the prime mover. And maybe . . . a hedge spoken in whispers as loud as a roar . . . the focus on private initiative has gone too far, such that we have lost sight of the substantial good that government can do.

If you want to see the future of social enterprise, you have to do more than round up the usual appealing suspects. Robert Reich's Supercapitalism, Jim Collins' Good to Great and the Social Sectors, Michael Edwards' forthcoming Just Another Emperor and columns like this one today in the New Statesman--whatever we might think about their particular objections, we ignore them to our peril.

From today's RSS feed for the Social Enterprise blog (comments now closed). Even with an aggressive filter, I get dozens of these every day. I'm sure I could get a better screening system if I tried, but frankly, it's easier for me to use a capcha and not worry about what's showing up on the blog when I'm not looking.

An open door, a dark corridor, 11th Avenue.

So I figured, why not go in?

And that's how I found Honey Space, the new unattended gallery for emerging artists in New York. What's particularly interesting about this project is the degree to which it embodies the notion of a place apart--no organization, no bills, no exchange. As the New York Times notes,

"Mr. Beale calls his creation a no-profit gallery, perhaps because nonprofit sounds far too official for a space where you can see your breath on a winter morning."

Folks who've attended one of my "What is Social Enterprise?" talks may recall that I've long used Los Angeles' Homeboy Industries as an example. The organization gets well-deserved attention on a far greater scale in the latest New York Times.

This ad from 1924 sells showering for its health benefits. Makes sense to me, having read diaries from the era noting the weekly bath day. Showering made it easy to get clean.

Yesterday I posted an answer to a common question I receive re social networks & social enterprise.  (By the by, thanks for the comments and suggestions.  Keep 'em coming; I'll adjust the list soon.)  Today, another Q & A, this time involving an issue I've unfortunately had the occasion to chat about a number of times--being threatened with a lawsuit in response to something you've blogged.

Note:  One of the archaic aspects of current law regarding lawyers is that we're not allowed to give legal advice outside our licensed jurisdiction, which, in today's increasingly standardized legal environment, is a bit like saying you can't do web design for a New York client if you happen to live in New Jersey.  So instead of giving legal advice, I'm going to provide a professorial analytical case study and some links to useful summaries of the applicable laws.  I'm also going to do this in relatively informal language stripped for the most part of legalese--such as using "defamation" as shorthand for a range of defamation, slander and libel claims.  As per the note in the blog's footer, this doesn't constitute legal advice etc. etc. disclaimer disclaimer., and anyone who relies on anything said here is a numbskull.  If you're in a legal muck-up, pay a lawyer licensed in your state to apply it to your situation, which is kind of the point of the @#$#! restriction.

For a basic introduction to current law, check out the Electronic Frontier Foundation's guide here as well as the useful write-ups at the Chilling Effects Clearinghouse.  The upshot of the rules described in these references is that despite what you might hear from folks who are threatening you with a lawsuit, it takes more than just a negative or inaccurate statement to trigger a viable claim.

Here's a real-world example.  A few days ago, NonprofitTechBlog's Allan Benamer published a post in which he assessed a recent press release from Convio, a for-profit company that provides CRM software to nonprofits.  Convio is a company that has received a substantial amount of public attention for, inter alia, its political clients, a security breach and IPO filing.  Specifically, Allan observed that the announcement of the departure of co-founder and former CTO David Crooke was rather terse:

The inference here is that the quick and abrupt departure of David Crooke was payback for the Convio security scandal last year. . . . One would think that a co-founder would receive a rather more celebratory send-off than a one-liner buried deep in the tail end of a press release but what do I know? We’ve seen other co-founder CTOs unceremoniously dumped so this isn’t anything new.

Allan's post was not at all unusual.  It's the sort of observation biz watchers make all the time; there are entire blogs filled with this sort of thing.  Yet afterwards he received an email from David Crooke himself, in which he describes himself as being "generous" in giving Allan the opportunity to apologize and withdraw his post.  Here's an illustrative selection:

You need to understand that the web is not a playground where you can just say anything you want, and then say "oops, I made it up, it's only an opinion". The same defamation, slander and libel laws that apply to the New York Times apply to your blog. . . .

If you are not prepared to do that today, then send me the address where you can be served with legal notices, and the name of the attorney that will represent you here in Texas.

Convio's attorneys are also monitoring this situation, and may wish to take action on the company's behalf.

In the law biz this would be called a "cease and desist" letter, or C&D, and Crooke's* is typical of the form.  Maybe you think Crooke is a hero for sending it; maybe you think he's a villain--personally, I have no opinion on that.  I don't know David Crooke and have no reason to think he's anything other than a fine human being who loves puppies, hugs babies and founded a company that has succeeded in providing services that a number of organizations find valuable.

But is his C&D viable?   That's the subject of the immediate case study, which I'm conducting as I did back when I was a corporate law professor in, coincidentally, Texas.

My assessment after the jump.



*I use Allan's first name in part because I've met him in the course of my work with social enterprise; I haven't met David Crooke, so I don't presume to be on a first name basis.  Moreover, Allan is a helluva lot easier to pronounce at first glance than Benamer.

Fortunately, Obi Wan, there is another . . .

Razoo
A specialized social enterprise social networking site