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LEGAL COUNSEL & COMMUNIQUE

(Please note that I have replaced names and other pesonal data, to protect contributors' privacy. Anything that has been so altered from the original, is indicated by enclosing such text between square brackets.)



Date: Tue, 1 Sep 1998 12:42:38 -0700
To: "Ezekiel J. Krahlin" 
From: [EFF member1 ... http://www.eff.org/ ]
Subject: My gay-rights cartoon is charged with copyright infringement!

> I'm wondering if anyone at EFF can give me any advice in the 
> following matter. I just received an e-mail that I should cease 
> displaying one of my satirical works, using two "Peanuts 
> Characters".

I've forwarded your message to our Staff Counsel, [EFF member2].


Date: Wed, 02 Sep 1998 14:29:24 -0500 From: "[attorney1]" <[http://www.fala.org/index.html]> Subject: (no subject) Organization: [lawyers' group] To: ezekielk@iname.com Mr. Kralin: I have forwarded your email message regarding your "peanuts" cartoon to the other members of the First Amendment Lawyers Association. You may be hearing from some of them shortly. It is not surprising that you have received the letter from the attorney for United Features Syndicate. If they do not object to what they believe is unauthorized use of their characters, they may end up having waived some rights. That, of course, does not mean that you are incorrect in your belief that your parody is protected and your use of the characters is a fair use. Obviously, you should consult an attorney. While it may seem expensive to do so, it is much less expensive to seek someone out to help you now rather than later when things may have gotten worse. There are a number of recent decisions which recognize that parodies are fair use. Among those decisions are: Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 510 U.S. 569, 127 L. Ed. 2d 500 (1994) - United States Supreme Court Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2nd Circuit. 1998) Hustler Magazine, Inc. v. Moral Majority, Inc., 769 F.2d 12148 (9th Circuit 1986). Eveready Battery Co. v. Adolph Coors Co., 765 F. Supp. 440 (N.D. Ill. 1991). If you have access to a law library, you should take a look at these cases. I hope this is of some help. [attorney1] Here are the thoughts of another one of our Members, [attorney2]: "I think the problem is trademark infringement, not copyright infringement. And a greater problem is trademark dilution. There are First Amendment defenses, but my understanding is that the general rule is that in order to qualify as satire, the target of the satire has to be the trademarked product itself, rather than some third party. What he is thinking of is the fair use defense in copyright law, which won't help him with trademark infringement or dilution. Sounds like an interesting problem, and he really needs an attorney because of their need to police their trademarks.
Date: Thu, 03 Sep 1998 11:15:04 -0500 From: [Attorney1@wherever.net] Subject: Cartoon Organization: [Attorney Group] --------------------------------------------------------- Ezekiel: Here is another response from another member of the First Amendment Lawyers Association in New York, [Attorney2]: >Well, it's copyright infringement AND trademark infringement. >Whether cartoon characters are trademarks, copyrighted >material or both was the hot law review topic of the 70's and >you can do your owen research on that. The pictorial >characters are more copyright; the name "PEANUTS" is a >trademark. Hence the (r) in counsel's message. >The parody case is *Two Live Crew* (the "Pretty Woman" case). >And the letter is almost right: parody is permissible >copyright infringement if it makes fun of the thing being >parodied. Theoretically, parody would NOT be permissible if >it merely used protected images to make some point (or >other). But Clyde's right: that position runs into First >Amendment problems of its own, especially if the point being >made is political or otherwise a matter of public interest. >Here you could argue that the parodist is sending up Charles >schulz's alleged insensitivity to gay concerns. Finally, for >what it's worth, I can't believe that stalwart defender of >the interests of comic books, my learned colleague Burton >Joseph, can't find a defender for this guy, NOT TO MENTION >the Lambda Education and Defense fund, &c., et al. You could >give Liz McNamara of the Kovner firm here in New York a call. >She defended a gay group which wanted to use the Pink Panther >(an image of same) for poster/symbolic purposes, arguing that >pink is a byword for gay concerns and that "panther" follows >the tradition of the Black Panthers and the Gray Panthers as >identifying militant activist groups. She lost. --LS I hope some of this helps. [Attorney1]
On Thu, 03 Sep 1998 11:15:04 [Attorney1] wrote: >Ezekiel: Here is another response from another member >of the First Amendment Lawyers Association in New >York, [Attorney2]: Thank you...I appreciate very much these viewpoints...as they help me establish my case. >>Well, it's copyright infringement AND trademark > >infringement. >>But Clyde's right: that position runs into First >>Amendment problems of its own, especially if the >>point being made is political or otherwise a matter >>of public interest. Here you could argue that the >>parodist is sending up Charles schulz's alleged >>insensitivity to gay concerns. My "Pee Nuts" parody is just one among three Sunday comic strips that I have parodied. I intend to add more, in due time. My home page at: http://members.tripod.com/~ezekielk/ will give you the links to my parody on "Beetle Bailey" and "Cathy", as well as on the "Peanuts" one. I am criticizing the lack of visibility of gay characters in our mainstream Sunday Comics...and daily comics at large. To me (and probably most everyone else), Schulz's Peanuts series represents the quintessential Sunday Comic in contemporary Amerika. (White bread, Protestant, dull, presumably inoffensive to anyone...geared towards making profits from pap sentimentality, rather than making statements that might offend "mainstream" sensibilities.) In my opinion as a political artist, no other single comic strip could make that claim, so readily. Thus, obviously, his strip would clearly be a choice target for my parody. But, it is not Mr. Schulz's comic strip itself I am singling out for criticism...it is the Sunday Comics at large that I parody. So I try to imagine one or another popular Sunday Comic character as a gay revolutionary ...and I thus come up with results that are not only criticisms, but hilarious invocations (by virtue of society's inability to take gay people seriously). Imagine that! Charlie brown is a Queer Nation activist, who is one angry faggot for not having any gay characters in his world! And Lucy the lesbian couldn't agree with him more! They are comrades under the skin, for the sake of their common cause! (I believe in using humor to make a point...thus, parody is my favorite vehicle.) I am keeping on a web site, all concerned parties up to date on my "Pee Nuts" issue, at: http://www.2xtreme.net/jwd/k6/copyrite.htm There, you will find the image in question, the letter from Schulz's legal counsel, and other informative and relevant material. This includes my short essay, "My Pee Nuts Agenda"...in which is implied that I created my Peanuts parody exactly with the hope that I would draw public attention to my work as a result of legal ramifications...and do this without violating any law that I know of. Should the pot continue to get stirred, I hope to be interviewd by some media interest, or have my say in court (if it comes to that). Using my Peanuts parody is an attempt to gain a voice with a large audience of Amerikans. And once I have that voice (if I have that voice), I will say the following: ------------------------------------------------------------- Permission granted by author for anyone to distribute this writing free of charge (including translation into any language)...under condition that no profit is made therefrom, and that it remain intact and complete, including title and credit to the original author. Ezekiel J. Krahlin ezekielk@iname.com ------------------------------------------------------------- MY PEE NUT AGENDA (c) 1998 by Ezekiel J. Krahlin I will be dragged into the courts...hopefully with copious media attention. And then I will say: "I will gladly remove my Peenuts parody, if Mr. Schulz will promise in writing, that he will add a gay character or two in his regular Peanuts comic strip. But if I can't even have that, I want to address all our major newspapers...especially those in urban areas with a major homosexual population: "Please, for God, for any god's, sake, start including one gay comic strip in your daily and Sunday comics. Don't you see what is going to happen to us gay people, if more of you heteros in power continue to *not make an outspoken and incontrovertible stand for gay freedom? Like it or not, we are dependent on heterosexuals for our liberty, our food, our homes, our survival. We gay people cannot *possibly win our rights on our own. "Where is your honor, your dignity, your sense of Amerikan values of decency and fair play? Are you really so afraid of Christian fanatics as to toe their party line, at the cost of gay people's annihilation? Until you do the right thing, the heartfelt and respectful thing...which is including a gay-relevant comic strip...our blood, gay blood, will continue to be spilled across your pages, across your headlines, across every newspaper in this troubled, homophobic nation. "For as we raise our children, so bends the tree. And if gays remain invisible to them in our daily comic strips, as well as in other media so influential to the formative psyche...then we cannot expect anything better than future generations fearing and villifying gays. "May Charlie Brown, our little friend to all hetero-centered children, suddenly acquire a new neighbor...a neighbor who is (dare we say it) also gay...and proud of it! "We're here! We're queer! Good grief!" --- end of my rant That is the essence of the point I want to make; however, I am still reworking it to make it the best speech possible. So now we have a more important issue about parody in art: for I am using a larger canvas than most artists use...as my canvas is life itself, and my imagination, the brush. So, while the Peanuts parody may be the focal point of my work, it is but a small piece of the canvas. The real work of art is the social reactions to my parody, including the possibility of my appearance and behavior in court. In effect, I have "painted" myself into court (possibly)...or at least as an artist, I am trying my best to! But I will at least try to "paint" myself into media recognition one way or another, in order to present "My Pee Nut Agenda" to our citizens. So if the courts must evaluate my work of art, as parody or other...jurors must also consider the essential and entire work, and not just one part of it. And the essential work is this real-life, animated diorama that I am creating around a particular criticism of mine...with possibly lawyers, judges, jurors, and news media being included in this, my greatest work to date. In effect, your kind interest in this matter, puts you on my canvas, too. For I will have good guys and bad guys in this diorama...as I am portraying (in my opinion) the classical struggles between good and evil...in this case, between corporate self interest and personal liberty...as it deals with gay artistic activism. If you have any doubts as to my artistic philosophy of using life as my canvas...there is a precedent in this matter that I have already set, with my adventure of "The Somalian Affair", which you may view at: http://www2.fortunecity.com/village/weaver/76/ To date, I consider that my most significant work of art. I intentionally created controversy (in this case, addressing our Marines in Somalia as a gay activist), in order to use life as my canvas...to put together as many of the reactions as I could, in order to preserve the event. The most significant aspect of my artwork (using life as canvas) is the actual string of events that ensue, by the brush of my imagination. And one can only capture small pieces of that result, here and there, as a permanent record. So that web site is the final result...with hopefully, more things to add should anyone who was *there, add to my accounting of the event...or anyone who *knows someone who was there. While my form of artistry may presently not be recognized as a legitimate medium, I believe some day it will. Life as canvas. As Shakespeare said, "All the world's a stage..." blah blah blah. >>Finally, for what it's worth, I can't believe that >>stalwart defender of the interests of comic books, my >>learned colleague Burton Joseph, can't find a >>defender for this guy, NOT TO MENTION the Lambda >>Education and Defense fund, &c., et al. You could >>give Liz McNamara of the Kovner firm here in New York >>a call. In my case, money *is an object. While not your romantic "starving" artist, I am otherwise dirt poor. I live on only my disability stipend, and have for many years. For me to pay any legal costs is impossible. So I am hoping to find an attorney who really is inspired by my approach, and would regard defending me as a feather in her cap. I feel that my right to free speech is being threatened with repression. I see nothing legally wrong with my Pee Nuts parody...and in fact, everything *important in doing so. In fact, if at all possible (though I know the idea is a remote one), I'd like to *sue such corporations that attempt to suppress the little guy...not because he is wrong for exercising free speech in the form of parody (which he is not), but only because the plaintiff is filthy rich, and therefore operates as a tyrannical force within a supposed democracy...and that, all too often, money speaks louder than freedom. >I hope some of this helps. Definitely, and thanks again! I have read the examples of previous "fair use" cases, that you referred me to...here on the web. I have found the "Law Journal Extra" to be an excellent resource to save me the trouble of marching down to a law library. They're at: http://www.ljx.com/ Just go to their "Contents" section, to find references to copyright issues. Scroll down to "Practice Areas", where you'll find the link to "copyright".
Date: Thu, 03 Sep 1998 16:11:41 -0700 From: "Ezekiel J. Krahlin" Subject: Re: Cartoon To: [Attorney1] I want to bring to your attention a web site that parodies another Sunday Comic favorite: Dysfunctional Family Circus http://www.spinnwebe.com/dfc/ which may help in my defense. Someone in our present newsgroup discussion, [SoAndSo], discovered this site. (This discussion is in "alt.politics.homosexuality", entitled: " My gay-rights cartoon is charged with copyright infringement!") Now, another matter you and your associates may help me with: I once worked for an attorney by name of [Attorney2], in San Francisco, some time in 1984 (or thereabouts). He has long since moved to Sacramento, and the last time I heard from him was maybe in 1986 or '87, when he offered me a position with his firm, if I didn't mind moving there. I hated to turn him down, but I decided not to accept the generous offer. I am trying to contact him again, regarding my Pee Nuts parody...as I'm certain he'd not only love to hear from me again, but possibly assist in finding me some good legal counsel here in the San Francisco area. Unfortunately, I have yet to track down his present phone number, e-mail, or snail-mail address. The other attorneys that worked with him were all great people, like [Attorney2] himself, but I have since lost contact with them, or remembrance of their names. I am hoping that you, as part of the legal community, may more easily find some way to contact [Attorney2], and inform him about my situation. But he will not know me by my present name...which I changed in 1996. He will remember me as "Gene Catalano". If you manage to get in touch with him, tell him I still live in the same building, as when I worked for him. Thank you for all your kind and excellent help.
From: [Attorney1 <[attorney1]@ucla.edu>] Subject: Peenuts To: [Queer law list server] Cc: ezekielk@members.gayweb.com Date: Sat, 05 Sep 1998 On misc.legal.moderated Ezekiel Krahlin posted an inquiry about a comic strip he has placed on the Web. It is a gay parody of the Peanuts comic strip. An attorney at Baker & Hostetler sent Ezekiel a cease and desist letter on behalf of United Feature Syndicate, the copyright and trademark owner of Peanuts. You can see a copy of Peenuts, the cease and desist letter, and various other information on Ezekiel's website at: http://www.2xtreme.net/jwd/k6/copyrite.htm Regardless of the merits of any parody fair use defense that Ezekiel might make, he's going to have a tough time fighting the big guys without counsel. I know this isn't the usual fodder for gay legal rights organizations, but, nonetheless, I thought I'd post this to the list in the hope that someone might help Ezekiel out. ------------------------------------- [Attorney1 <[attorney1]@ucla.edu>] UCLA School of Law '98 http://www.geocities.com/Paris/1206/ -------------------------------------
From [Comic Book Legal Defense Fund] Fri Sep 11 11:35:21 1998 Date: Fri, 11 Sep 1998 14:32:10 -0400 Dear Krahlin, I have forwarded your letter and that of [Person1] to the Comic Book Legal Defense Fund's legal counsel at Barsy, Joseph, Lichenstein. Our attorneys will examine your letter and advise me whether, in their opinion, your case fits the CBLDF mission as laid out in our by-laws. If they determine that your case does fit our mission parameters, they will recommend a course of action, and they may wish to speak to you directly. I should have a preliminary determination from them on Monday, September 14th. In the meantime, I would appreciate it if you could provide me with contact information, including your phone number and mailing address. I invite you to call me here at the CBLDF at 1-800-[nnn-nnnn]. I look forward to talking to you to learn more about your case and to explain the CBLDF's procedures in greater detail. Sincerely, [Person2] Executive Director Comic Book Legal Defense Fund cc: [Person3, Person4, Person5] ********************************************************* Comic Book Legal Defense Fund P.O. Box 693, Northampton, MA 01061 413-586-6967 Voice 413-582-9046 Fax web: http://www.cbldf.org e-mail: cbldf@compuserve.com *********************************************************
UPDATE September 24, 1998 A lawyer from the Comic Book Legal Defense Fund voice called me this afternoon. Conclusion: I have a good case, and if it should go to court, it will most likely be tried in Washington, D.C. We will remain in contact, and I will keep everyone updated on this Pee Nuts web site. Since I am poor and on disability, the court system must pay my expenses for travel to and from D.C., and providing me with room and board. I, for one, would regard this as a welcome vacation, since it has been over 10 years since I was last more than 100 miles from San Francisco. Ironically, that last time was also in Washington, D.C., in 1985...when I flew out to stand by the side of Randolph Louis Taylor. This is the man who shot himself in D.C., in front of The Wall (Vietnam Memorial) January 16 of that year...and survived. I visited him in the VAMC hospital there, to support his recovery. So to me, Wash. D.C. is a sacred place, which I would be honored to revisit. Randolph was also a gay rights activist, as well as the veteran who fasted for 40 days in 1984, in order to have Vietnam vets represented at the San Francisco Democratic Convention. He is the most important person in my life, even after his (supposed) death. To learn more about this amazing man, check out my site dedicated to him at: THE SOMALIAN AFFAIR http://www2.fortunecity.com/village/weaver/76/ P.S.: I entertain the possibility that my Randolph staged his own obituary, to go underground for political reasons beyond my grasp at this moment. I conjecture the formation of a gay quasimilitary underground...and this Pee Nuts lawsuit a possible cover to bring me back to the capitol, to be united with Randolph...and then begin the revolution...the very gay revolution. Then again, perhaps I'm just bonkers...as many already believe. ---end of list