joegratz.net

The EFF, along with a team at Akin Gump led by Elizabeth Rader, represent Dr. Stuart Frankel in a declaratory judgment action filed yesterday against Lyons Partnership, owners of copyrights and trademarks in Barney, the fictional purple dinosaur. Lyons sent numerous C&D letters to Frankel regarding a parodic page on his website. Highlights of those C&Ds include:

• Sending two more nearly-identical C&D letters directly to Frankel for four years after being notified that he was represented by counsel, in apparent violation of DR 7-104 of the New York Lawyer’s Code of Professional Responsibility;
• Asserting that implicit threats of violence toward an imaginary purple dinosaur are actionable under copyright law; and
• Claiming that any use of Barney — evidently even parody or other fair use — is unlawful without permission from the copyright holder.

The EFF, it would seem from the exchange of correspondence attached to the complaint, was already a bit peeved at Lyons for sending a C&D in 2001 threatening to sue over the EFF’s mirror of a rather tasteless but nonetheless noninfringing essay about Barney written in 1994 and stored in an archive of BBS textfiles.

There’s certainly room for settlement. However, unconditional capitualtion on the part of Lyons, while the wisest course, may not be the likeliest. I wouldn’t be surprised if Frankel settled for nothing less than a judicial declaration of the parodic nature of his use. He doesn’t have much to lose, since he has some of the best copyright lawyers on the planet working on his side pro bono.