Blogging:Da Good, Da Bad, and DeMeco

[Wolf]

from Lionel Hutz blog

If you glance to your right, you will notice that the disclaimer once buried near the bottom of the right hand column has been moved up. "Why is that," you are likely thinking. And the answer would be "because I am a nice guy."

Hold on. Let me back up a few days and fill you in. Because, you see, there have been some rather strange and unexpected goings on in the land of DGDB&D over the past three days.

Sunday morning, I plopped down on the couch to map out my fantasy football draft strategy and check email. Which is to say, it was shaping up to be a pretty typical Sunday.

So, you can imagine my surprise when I opened Gmail to find a letter from DeMeco Ryans' lawyer. According to Mr. Lawyer, my use of DeMeco's first name in the title of this blog presented some possible legal and marketing problems for DeMeco. Lawyer then said they would "greatly appreciate" it if I would remove the name.

I was puzzled. Granted, I didn't pay much attention in law school--OK, I didn't pay ANY attention in law school--but I was pretty confident that I was doing nothing wrong. I replied to the barrister, thanking him for a very polite email (his approach was much better than a boilerplate cease-and-desist letter) and asking him to explain what the problem was. I also mentioned that, while I was pretty sure I wasn't doing anything other than exercising some free speech, I was totally willing to work with him and his client (including changing the name) if we could reach some sort of mutually beneficial agreement.

The law-talkin' guy replied, still in a pretty gracious manner. He said that owners of intellectual property have a right to police "the marketplace" in order to prevent loss of income or marketing viability resulting from unauthorized use, that DeMeco's marketing agreements require him to be pro-active in making sure people aren't illegally using him or his image, and that my use could potentially expose DeMeco to lawsuits through no fault of his own. (I had also asked in my previous email if DeMeco was aware of the site and the attorney assured me that he was. Which means DeMeco might be reading this. Email me, dude.)

Anyway, there are some nuggets of truth to what he was saying. In a vacuum, at least. As they applied to my situation, however, this explanation fell a little short. So, another email from me to him. I asked him to point to me where anyone has intellectual property rights in his or her first name, especially as that would apply to a non-commercial blog. (The non-commercial aspect is the key to this whole exchange, really.) Also, because he had mentioned in his previous email that DeMeco was cognizant of the importance of fans and free speech, I suggested that asking a fan to abridge his free speech rights seemed contradictory.

The attorney again replied. He "explained" that DeMeco has common law and statutory rights in his name and substantial rights of publicity. He also said that, insofar as free speech goes, they have no issue whatsoever with me (or anyone) discussing DeMeco's play in the blog; they were merely concerned that his name in the title of the blog could lead someone to think Ryans supported everything that was said here. (Author's note: I want to meet someone that clueless. That's how millionaires are made.)

http://gotexans.blogspot.com/2007/08/lionel-hutz.html

I proposed the following exchange: I would shorten the name of the blog to the acronym "DGDB&D" in the header, the page title, and by email to anyone who links here. In return, DeMeco would make a donation to the Houston Chapter of Stand Up For Kids. (They get homeless and at-risk children off the street.) Also, if DeMeco was interested, I'd like to do a phone interview. I figured this charitable donation was in keeping with the whole Ahman Green-Jason Simmons thing and would be good press for the team and DeMeco (and, yes, me). Conversely, I offered to move the disclaimer up on the page so that it was more prominent, but stipulated that I would be keeping the name if I did that.

Lawyerman replied the next day (yesterday) and told me he would run it by his client.

Today, I get an email at 7:14 CST. They had chosen the latter option and would be placated if I moved the disclaimer up. So long as I kept it non-commercial. He also said that they would suggest the charity to DeMeco's foundation at some point in the future. Which brings us to where we are right now.

 

[Wolf]

http://gotexans.blogspot.com/2007/08/awesome.html

When last we left our hero (Lionel Hutz), the disclaimer had been moved into a more prominent position, DeMeco and his attorney were happy, and it seemed as though the whole situation had wrapped up all nice and tidy.

Last night, however, the founder of StandUp For Kids, Rick Koca, found the post and commented on it. (Which is pretty cool.) Then, this morning, I received another email from the lawyer, saying that DeMeco's Foundation is going to make a donation to SUFK, that he thanked me for bringing the charity to their attention, and that DeMeco was going to send an autographed football to my son. (All of which is also pretty cool.)

I still think there is a big underlying issue here and it's likely one that won't go away until one of these "blogger v. celebrity" cases winds up in court. Thankfully, all sides involved in my situation remained calm and worked through the discussion like rational human beings. (Full disclosure: I have to thank my friends for keeping my replies friendly and level-headed. I am nothing if not prone to flying off the handle.)

 

[Wolf]

The guys on this team whether they are superstars in the league or roll players (like jason simmons) ...are a group I am honored and proud to support (well I would support the Texans anyway) but the way these millionaires whether they are kids in early twenties up to 30ish ...stand up guys here
just another excuse to be very very proud of OUR Texans

for those that missed Mario's visit with injured soldiers

http://www.texanstalk.com/forums//showthread.php?p=689525#post689525

a teaser

 

[Old School]

Good Read. I am curious as to how they could legally make you remove his first name. I know you don't care to go into the details nor do I want you too but to me having a blog with someones name in the title wouldn't be any different than a newspaper article with someones name in the title.

Still props to you for coming to a suitable (and peaceful) arrangement and getting some help for a local charity to boot.

 

[Matt]

Good Read. I am curious as to how they could legally make you remove his first name. I know you don't care to go into the details nor do I want you too but to me having a blog with someones name in the title wouldn't be any different than a newspaper article with someones name in the title.

Still props to you for coming to a suitable (and peaceful) arrangement and getting some help for a local charity to boot.

They couldn't "make" me. The deal was, DeMeco's lawyer started off friendly, but asserting legal arguments that just weren't true. He would have had a point if I was making money off of the blog, but I wasn't. Once he realized that, he still didn't back off entirely (we lawyers never do), but his assertions changed more to just being receptive to some sort of agreement.

I really think he was expecting me to ask for season tickets or something like that. When I went with the charity thing, I don't think DeMeco felt like he should trade charity for his own personal goals. The disclaimer thing was just my compromise.

But, you are right. Merely using someone's first name is not legally actionable in the least (assuming, of course, you don't cross some sort of line into defamation). With a very recognizable first name (DeMeco, Elvis, etc.), making money off of that without their consent would be illegal, but I wasn't. Because he's a celebrity, without showing monetary gain on my part (or monetary loss on his part), there wasn't anything they could do.

 

[Wolf]

sorry old school, I thought I copy and pasted the actual author and somehow didn't highlight it.. I edited the post to put his name on there so y'all would know it wasn't me

 

[Matt]

sorry old school, I thought I copy and pasted the actual author and somehow didn't highlight it.. I edited the post to put his name on there so y'all would know it wasn't me

Thanks for posting this over here. I was happy with how quickly word got around after the post went up.

 

[Wolf]

I thought it was a good story and I didn't know about the disclaimer you had to put at the front
thanks for posting