by Paul Alan Levy
Ready for Hillary may have no more sense of humor than the NSA, but like the NSA, its leaders apparently know when the law is against it. Late last night, just before midnight in fact, we learned that Ready for Hillary had sent a letter to Zazzle retracting its contention that Dan McCall’s Ready for Oligarchy parody infringes its intellectual property rights. Ready for Hillary did not bother notifying McCall of its decision, and it is a good thing that the Eastern District of Virginia does not allow electronic filing of complaints, because our complaint fully drafted and would have been e-filed last night. Had we filed suit, McCall’s a claim for damages for shirts not sold in the interim would have survived the mootness of his claim for declaratory relief, but we have concluded that the case is not worth filing now that Ready for Hillary has, however begrudgingly, done the right thing.
We remain distressed that Zazzle and CafePress removed the items in the first place, although their conduct over the past week confirmed my sense that CafePress remains the better company for sellers whose expression plays on names, designs, slogans or logos that enjoy trademark or copyright protection and who therefore rely on robust application of the doctrine of fair use and the rule that true parody, although it resembles a trademark enough to call the IP owner to mind, nevertheless does not create an actionable likelihood of confusion. CafePress makes its own judgments about challenged materials – in the words of CafePress's Sarah Segal, it “balances our desire to support free expression of its users” and reviews individual situations in discussions with its users. Zazzle, by contrast, woodenly follows the DMCA (at least when copyright violations are claimed), immediately removing challenged material and restoring it, if at all, if the user follows the DMCA counternotice procedure and sufficient time passes.
As for Ready for Hillary, the judgment of its leadership remains in substantial question. It’s a good thing for Hillary Clinton that she can point to the PAC statutorily-required independence from her control in distancing herself from its attack on protected expression.
And McCall himself is spinning out new parodies….
