Law Firm of Gibney, Anthony & Flaherty - articles - Purple, the Color of a Legal Conniption

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Source: www.allbusiness.com/services/legal-services/4466990-1.html
January 7, 2011. Content has not been altered.

Barney Owners Settle Parody Web Site Case
By Eriq Gardner
Publication: thresq
Date: Wednesday, November 29 2006
NEW YORK -- Proving that purple dinosaurs sometimes bite off more than they can chew, a digital rights advocacy group is claiming victory over the owners of the popular children's television character Barney.
Lyons Partnership, an affiliate of HIT Entertainment, has aggressively sent cease-and-desist letters to those mocking its copyrighted purple dinosaur. Stuart Frankel was one of at least six individuals who received a letter demanding he take down his Web site, dustyfeet.com/evil/enemy.html, that parodied the character and referred to it as Satan and the Antichrist.
Frankel turned to the Electronic Frontier Foundation, which contacted Lyons' lawyers at New York-based Gibney Anthony & Flaherty. The two sides exchanged letters until the EFF filed suit in August in New York federal court, asking a judge to declare that Frankel's parody was a non-infringing fair use protected by the First Amendment.
Barney's owners finally blinked, agreeing to withdraw their legal threats against Frankel and to compensate him for legal fees.
EFF staff attorney Corynne McSherry said she hopes that other copyright holders take notice of the result.
"This case is a lesson for other content owners to make sure you have a legitimate complaint before sending harassing letters," she said. "Those who misuse copyright should know that they can be sued for doing so."
HIT spokesperson Denielle Webb said the company has no apologies. The case has been dismissed without any ruling on the allegations contained in Frankel's complaint or the underlying merits of either party's position.
"We will continue to monitor the Web and other media outlets in an effort to keep our brands from being associated with violent or sexually suggestive images that might be encountered by a parent and child looking for wholesome entertainment to share," Webb said.
In 1999, Lyons lost a similar case when the 5th Circuit ruled that a sporting event performance by a mascot that assaulted a Barney look-alike was protected from a trademark claim as a parody under the First Amendment.
"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 held in Lyons Partnership v. Giannoulas.
EFF was assisted in the current case by Elizabeth Rader, James d'Auguste and Brian Carney of Akin Gump Strauss Hauer & Feld. Lyons was represented by Brian Brokate and Mathew Carlin at Gibney Anthony & Flaherty.
The case was Stuart Frankel v. Lyons Partnership, 06CV6413

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