Ohio2006 Blog

News, analysis, and comments on Ohio elections.

Tuesday, September 26

YDS Declares Victory and Thanks Supporters

This is an important post for me. Last week the Ohio House Republican Campaign Committee, acting on behalf of Rep. Earl Martin (R-Avon Lake), committed the illegal act of stealing a photograph from this blog and using it without permission in a baseless attack ad against challenger Matt Lundy (D-Elyria). My initial protests were brushed off, with both Martin and the Ohio Republican Party asserting that my communications to them were misdirected.

Having passed the buck, the Republicans next declared that they intended to continue violating my intellectual property rights whether it was legal or not. Scott Borgamenke, chief of staff to House Speaker Jon Husted (R-Kettering), told the Elyria Chronicle Telegram that they would look into the issue of whether my rights had been violated, but either way the ad would continue to run. "We won't change the ad," he said. "He can take us to court if he wants to."

After this stunning admission of disregard for the law, respected attorney Subodh Chandra and intellectual property expert (and 98th Ohio House District candidate) Raymond Ku stepped in to help vindicate my rights. In the course of preparing to file a federal copyright lawsuit, Chandra faxed a letter to the television stations and ad agency, requesting that the ad be retracted and stating our determination to sue, with copies to Martin and the OHRCC.

The Republicans folded. They had no intention of obeying the law before I had powerful representation, but afterward they swiftly announced that they would pull the offending ad and stop using my photograph. They did not admit their wrongdoing or apologize. (Rep. Earl Martin even told a reporter for the Elyria Chronicle Telegram that my threatened legal action is the kind of "frivolous lawsuit" that he combats as a legislator.) However, it is plain beyond real argument that they recognized their wrongdoing, and when they realized that they could not get away with it they capitulated.

I could have proceeded to file the lawsuit, in order to collect statutory damages and attorneys fees for the violation that occurred, but I made the decision to accept my out-of-court victory and move on. I did not obtain an apology or monetary compensation, but I stood up to them and made my voice heard and I believe that an important precedent has been set. Also, I helped to reveal the disregard for the law on the part of the Ohio House Republican Campaign Committee and Rep. Earl Martin, and that may be the most important aspect of this victory.

I thank Subodh Chandra and Professor Raymond Ku wholeheartedly for their timely and expert assistance. I also thank the many bloggers who backed me up, both on their blogs and behind the scenes, including Cindy, Bill, Eric, George, Jill, Redhorse, Scott, and Russell. Finally, I thank the readers who left supportive comments or sent email messages.

12 Comments:

At 11:13 AM, Anonymous Anonymous said...

Bravo!
Yellow Dog, you are the best!
Kudos to Ku and Chandra, too.

 
At 11:14 AM, Anonymous laborguy said...

Very nice. Thanks for standing up to the bullies.

 
At 11:42 AM, Blogger David said...

Congratulations. Since they won't apologize you should (jokingly) demand that Earl Martin's campaign site should link here to satisfy the attribution part of the Creative Commons Copyright they ignored.

 
At 12:36 PM, Blogger Jill said...

Everyone is free to practice integrity, just like everyone is free to be sleazy, unless they breach the rights of others.

As you've indicated and several others have, a similar situation happened with Democrats. This time, in your case, it was Republicans.

The point being that what you've done, Jeff, will help the freedom of speech protections as exercised by people who produced, and own work on the Internet. That the material appeared on a blog makes it no less your property and no less entitled to protection.

Thank you for shouldering all the anxiety and angst and no doubt anger that must have gone with this entire episode.

 
At 1:33 PM, Blogger Tim Ferris said...

good work--you have a powerful network there, Sammy

 
At 3:20 PM, Anonymous Anonymous said...

Does anyone remember Chandra's "Simpson’s” themed cartoon satire featuring himself as Indian shopkeeper Apu, and comparing Marc Dann to Homer Simpson?

(That was clearly satire, not a parody. It makes a BIG difference to anyone who knows copyright law.)

Explain to me why that was o.k. (Maybe because he was one of us?)

One could have leveled the same charge then. A candidate for AG should know better. Maybe he just didn't get caught?!

Before we continue to lob generalized accusations at ALL Republicans, maybe we should clean the windows in our glass houses.

Also, Jeff, you should be careful on your blog when you publicly charge Martin with "theft." First, copyright infringement does not equal theft. Second, you need to know about the "fair use" and "de minimis use" doctrines of copyright law. They probably applied here, and are NOT affected by a CC license.

 
At 4:10 PM, Blogger Yellow Dog Sammy said...

Anon -

I appreciate your comment but I must disagree with you on a number of points.

I do not agree that Chandra's mimicry of Simpsons characters was "clearly" satire rather than parody. It seems to me that Subodh could be interpreted as commenting on Groenig's work as much as, say, the rappers 2 Live Crew in the Supreme Court case involving Roy Orbison's song "Pretty Woman."

Copyright rights ARE property, and the unauthorized taking of property is properly considered theft. In any event, I was very clear in my post that the stealing I'm talking about is misappropriation of intellectual property rights, so I don't think it can be taken as an accusation of something like, for example, highway robbery.

Also, I never accused all Republicans of violating my rights, just the ones involved in this episode, although I continue to feel that it reflects the "rules don't apply to us" attitude that prevails in this Republican-controlled state government of ours.

Lastly, I know quite a bit about the "fair use" and "de minimis use" doctrines. Although I'm sure the defendants would have argued fair use, I believe strongly that I would have won on that issue. (There are a few cases to support their view, but the better case law is on my side.) As to de minimis use, it has no application here -- their use of my photograph pervaded their entire unauthorized derivative work.

Your implicit point that Democrats as well as Republicans are capable of violating intellectual property laws in this context, alluded to by Jill also, is well taken and I accept it. Indeed, I think the unauthorized use of Scott Bakalar's photograph of Capri Cafaro in a campaign mailer in support of Democrat Betty Sutton was reprehensible.

As far as my own use of photographs from political web sites to depict candidates about whom I write (which you don't mention but I'm sure others are thinking about it), let me say that I think I am covered by the fair use doctrine, supported by the non-profit nature of this blog and the newsworthiness of my commentary, but if any photographer reasonably disagrees and objects to my use of a particular image, I would take down the photograph and apologize. I demanded nothing more than that from Rep. Earl Martin and the Ohio House Republican Campaign, and they chose to blow me off until I had legal firepower behind me.

 
At 7:42 PM, Anonymous Anonymous said...

I think Professor Lessig (who has better credentials than anyone in Ohio- Republican or Democrat) at Stanford would disagree with you about Chandra's Simpson's piece being a parody. See this page @ The Tech Law Advisor. ((http://techlawadvisor.com/2004/07/parody-not-in-logo.html

Seems that case law has in this area has evolved.

Maybe Chandra should have asked Ku about that one, too.

At any rate, by your leap, Chandra has committed theft as well. My point in the last post was that Martin was not found to have violated anything! You are a lawyer-- you know better than to convict someone before trial...it's irresponsible maybe even unethical for an attorney to do that.

As far as "de minimis use," check out this case, which was affirmed by the 6th Circuit. (Gordon v. Nextel Communs. 2001 U.S. Dist. LEXIS 25048

How can you say your case law is better? Did anyone even look at the case above? or the "Cat in the Hat" case? There are lots of others, too, that likely were not analyzed. That's the quick nature of a "cease and desist" type letter that Chandra sent.

 
At 9:25 PM, Anonymous staff said...

i love anonymous concern trolls

 
At 10:13 PM, Anonymous Anonymous said...

...just a fan or accuracy and reality.

And, by the way, BSB, Thomas Paine is spinning in his grave over your laughable "Pamphleteers of the Revolution" claim.

Not every misfit with a laptop and a grudge is part of a revolution.

 
At 10:16 PM, Anonymous Anonymous said...

Also BSB, lest you think I am merely a biased extremist...I happen to be a fan of YDS. May not always agree, but he is willing to look at all sides of an issue.

 
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