Stuart Frankel created a website which featured a doctored
photograph of Barney with fangs and a pentagram and '666' on his
belly, saying that this was what Barney looked like after a
show.
Lyons Partnership, the owners of Barney, threatened to launch a
copyright and trade mark violation law suit against Frankel unless
he took the site down. Frankel refused and contacted digital rights
lobby group the Electronic Frontier Foundation (EFF) which filed a
law suit on his behalf.
Frankel's suit sought a declaration from a Federal Court of San
Francisco that his use of Barney imagery was protected as 'fair
use' and was protected by the US Constitution's First Amendment,
which guarantees rights to free speech.
The EFF says that copyright law is increasingly being used to
control what people say about certain things under the guise of
protecting intellectual property. "Those who misuse copyright
should know that they can be sued for doing so," said EFF staff
attorney Corynne McSherry. "This settlement should send a message
to those who want to use copyright law as a pretext for
censorship."
Lyons has withdrawn all legal action against Frankel and agreed
to meet his legal costs.
Lyons had written cease and desist letters to Frankel from 2002
onwards. "The images you are using of Barney are the intellectual
property of Lyons Partnership," read the first such letter. "It is
unlawful to use this property without the permission of Lyons
Partnership. These materials must be immediately removed. Lyons
Partnership would prefer not to have to pursue legal remedies or
contact your Internet Service Provider and inform it of your
unlawful use of copyrighted materials (which is presumably a
violation of your ISP's terms of service)."
"It's not much, but it's mine. They're acting like bullies.
They're doing this to other people, I'm sure," Frankel told
reporters in the US. "I just wanted to call them on it."
The case was settled out of court.
