By Todd Allen
The strange affair of The Oatmeal Vs. Funny Junk Vs. Funny Junk’s lawyer has ended. Maybe. The suit was dismissed this week, but it’s not quite as cut and dried as that. What? You were expecting simple answers in this affair?
The Oatmeal’s Matthew Inman was partially represented by the Electronic Frontier Foundation in this case and this is the EFF’s version of how it went down (we’ll get to Charles Carreon’s version of how it went down next):
Charles Carreon Drops Bogus Lawsuit Against The Oatmeal CreatorSuit Was Blatant Retaliation Against a Public Critic
San Francisco – Attorney Charles Carreon dropped his bizarre lawsuit against The Oatmeal creator Matthew Inman today, ending his strange legal campaign against Inman’s humorous and creative public criticism of a frivolous cease and desist letter that Carreon wrote on behalf of his client Funny Junk.
The Electronic Frontier Foundation (EFF) and co-counsel Venkat Balasubramani represented Inman in the case. While Carreon’s lawsuit was purportedly about whether Inman’s online fundraising campaign for the American Cancer Society and the National Wildlife Federation complies with California regulations, it was really a classic SLAPP – a strategic lawsuit against public participation.
“Matthew Inman spoke out against Carreon’s threat of a frivolous lawsuit, in a very popular and very public way,” said EFF Senior Staff Attorney Kurt Opsahl. “This was nothing more than a meritless attempt to punish Inman for calling attention to his legal bullying. We called him out on this in our briefs, so it’s no surprise that Carreon was left with no choice but to dismiss.”
The extraordinarily public dispute between Inman and Carreon started in 2011, when Inman published a blog post condemning the website FunnyJunk for posting hundreds of his comics without crediting or linking back to The Oatmeal. A year later, Carreon – the attorney for FunnyJunk – served Inman with a letter claiming the post was defamatory and demanding The Oatmeal pay $20,000 and agree to never speak the words Funny Junk again.
Inman publicly annotated the cease and desist letter with a scathing critique of its facts and logic and posted it on The Oatmeal. Furthermore, instead of paying Carreon’s baseless demand for $20,000, Inman decided instead to start a fundraising campaign called Operation BearLove Good, Cancer Bad through the Indiegogo fundraising platform to benefit the American Cancer Society and the National Wildlife Federation. The fundraiser’s goal was $20,000, to match Carreon’s demand, but the final total was over $200,000.
“Inman sparked a flood of charity donations, and yet Carreon still tried to punish him for making fun of his baseless legal threats by dragging him through the court system,” said EFF Intellectual Property Director Corynne McSherry. “We’re very pleased that Carreon has seen that his lawsuit had no merit, and hope that this is the end of his abuse of the legal system.”
And then over at Ars Technica, Carreon is declaring victory:
But while it may look like Carreon has come to his senses, Ars called Carreon to comment and found him declaring the lawsuit a success. “Mission Accomplished,” Carreon announced on the phone with Ars. We’ve heard that somewhere else before.
In a nutshell, Inman decided to have the funds transferred directly to the charities in question, rather than withdrawing the money and taking a picture with it before donating and Carreon seized on that as close enough to what he filed to claim victory.
Inman said in a separate sworn statement that, “in order to avoid having this lawsuit interfere with my expression and to avoid jeopardizing the funds from the campaign in any way, I withdrew funds from my own personal account and photographed those funds.” IndieGoGo distributed the funds directly to the two charities. To Charles Carreon, that’s a win.
Yes, all this fuss boiling down to whether or not he could take a picture of the money before donating it. But if that’s what it takes for face to be saved and let people walk away, it will save a lot of time and money. Assuming it’s over, which it might not be.
When asked whether the EFF would pursue compensation for legal fees and attorney costs, Opsahl stopped short of saying the dismissal of charges would bring an end to the whole debacle. “I’d have to talk to my client. [I] can’t make an absolute statement on what our next step would be.”
And then over at Popehat, it’s pointed out that this suit was withdrawn in such away that it could always come back.
1. Mr. Carreon can dismiss the case without leave of court because no party has yet answered.
2. Dismissal is, without court intervention, without prejudice, meaning that Mr. Carreon could re-file if he wanted. Will he? Who knows.
3. Based on some quick research, it appears to me that Mr. Carreon’s voluntary dismissal of the action does not preclude Mr. Inman from seeking attorney fees and costs under the Lanham Act. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394–95 (1990). That doesn’t mean that Mr. Inman will, or should, seek fees, for practical reasons too lengthy to discuss in this post. [Edited to add: behold the dangers of "quick research" -- a kind term for "talking out of your ass" or, more popularly, "blogging." This is probably wrong, for reasons I may address in another post. But I leave it up as an example of ass-dampery.]
4. Mr. Carreon could walk away from this particular set of opponents. But somehow I doubt he will. I predict that he will crow that he achieved a victory by “forcing” Mr. Inman and IndieGoGo to handle the charitable contributions differently than they otherwise would have. And I suspect he will continue threatening and suing others. Time will tell.
So the battle is over, but it isn’t clear that the war has ended.
And just as that raps up, another storm has blown into town. Donna Barstow, a political cartoonist for Slate, is having a dust up with Something Awful that’s showing up in places like Boing Boing and Popehat.
Says Boing Boing:
Slate cartoonist Donna Barstow railed on Monday at online forum Something Awful, whose denizens often repost her work and subject it to withering ridicule. Though one of many artists to find their work attacked online, Barstow is fighting back, demanding payment and accusing the site of copyright infringement.
When twitterers suggested that embedding and criticizing her panels constitutes fair use–a common defense against claims of copyright infringement–Barstow said that their treatment of her work was nothing of the sort.
“You steal my cartoons (read definition of Fair Use – NOT on SA) and ignore my takedown & DMCA notices. That’s evil,” she wrote.
Then over at Popehat, Ken gives his usual shy, retiring appraisal of how Barstow probably doesn’t have a leg to stand on:
Here, posting a comic from Barstow to criticize it, and her, is an even more compelling case of fair use. Even if Something Awful is making some sort of derivative advertising revenue from the incremental additional traffic, the forum posters who posted it are making no money, and the entire purpose is to criticize the art and politics of the cartoons. (That distinguishes theFunnyJunk affair, in which FunnyJunk users were reposting comics for their comic value, not to criticize or discuss.) Moreover, even if particular posts in the forum threads include just the cartoon, and not commentary, they exist in the context of a thread criticizing and discussing cartooning in general and bad cartoons in particular. Fair use doesn’t involve many bright lines, but this looks like a case that Something Awful could win, handily.
Her rage aside, I think Donna Barstow knows this. After all, she reprinted an entire Ted Rall cartoon in order to criticize it (screenshot taken in case she memory-holes it). She’s done things like that a fair amount. [Edit: Ms. Barstow has memory-holed her sites. Will post the Google Cache links when I get them.]
It gets even stranger for Ken when Barstow calls him:
Thanks to someone on Twitter who pointed Ms. Barstow to my contact information, she just called me at my office. I would characterize the conversation as surreal. Among the things she said: (1) she saw that I didn’t list copyright as an area of expertise, so how could I write about this, (2) she hadn’t threatened to sue anyone, (3) she shouldn’t have to put up with defamation, (4) how can I say bad things about her, (5) Obama created some sort of new copyright department but it was useless, (6) she was just trying to reach out to me person to person, and (7) she thought it was suspicious that I did not “sign” my post.
Alrighty then! Plenty of fury, but no actual lawsuit yet. Lawyers frequently refer to the “Streisand effect,” which even has its own Wikipedia entry. In a nutshell, the Streisand effect is what occurs when you try and suppress information or have critical comments removed and it blows up in your face, making it a much more public affair than it was in the first place. Plenty of that going on right now.