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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"
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"
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