Parody and Fair Use


Lawyers for the Government of Canada recently sent Jim Elve of BlogsCanada a letter claiming that his website was plagiarizing the look and feel of the Government of Canada website and asking that he 'cease and desist'.

This move comes as little surprise to Jim who was frankly expecting such action when he started his directory of Canadian blogs and was relishing the burst of free publicity such attention would bring. To him, the only wonder is that the government took so long to act. To me, this move highlights the grey area between parody and plagiarism, and the slippery slope of prosecuting both.

It's ironic that, in the post immediately before Jim's account of the cease and desist order, there is a post describing a burst of righteous anger (fully justified, in my opinion) over one clueless blogger's decision to take a post written by Vicki Smith and run it on his blog, without attribution or any other indication that the thoughts were not written by him. Some might wonder, if it is so deeply wrong to steal somebody else's words (and it is), why is it not wrong to mimic somebody else's appearance?

The answer can get a little murky, but let's compare and contrast the actions of the plagiarist to Jim Elve's mimickery. The plagiarist took an exceptionally well-written post that Vicki Smith had spent hours working on and, with very little effort on his own part, posted it on his site. He made it appear as though the thoughts were his, but he didn't sweat for them. His contribution to the creative process that Vicki launched was nil. Had he even said, "I found something really neat from this site; here it is verbatim, and here's what I think about it", that would have been enough to justify his post's existence. From that point on, he would have had an independent thought. He would have built something from Vicki's original effort.

This is why plagiarism is more serious than just an academic harranguing. There is great profit to be had from ideas. People work hard to formulate them, explain them and defend them. What right do you have to benefit from them unless you've contributed to them? Unless you add your own ideas to the mix, or acknowledge who gave you those ideas, you're stealing.

The relationship between copying words and plagiarism is clear to me, but the relationship between the "look and feel" of something is somewhat less so. Consider the Government of Canada's website and now consider BlogsCanada. What ideas from the Government of Canada's website did Jim Elve "steal", really? And did Jim Elve just "steal", or did he use the original ideas to build something new and different? I can understand a webmaster getting upset if he looked at copycat site and saw a CSS stylesheet or HTML code that was a direct copy of his own (this is hard work unacknowledged), but Jim didn't steal code; instead, he worked hard to build a site from scratch that mimicked the Government of Canada's website. And, in my opinion, that makes all the difference.

The French protect parody for this reason, and for the most part, the courts in North America seem inclined to take the French system's lead. We value freedom of speech, and that especially includes the right to criticize and mock. Taking characters, logos, trademarks, etc, and twisting them to highlight their ridiculousness to the world is a valid (some would say vital) component of democracy. It is for this reason that the folks at PaulMartinTime took on the people behind Paul Martin Times and won.

But Jim Elve is not ridiculing the Government of Canada or its website. Indeed, his parody falls in the "imitation is the sincerest form of flattery" category. He's picking up on the Government of Canada's website's usefulness in bringing important information to the Canadian internet and applying it to his very useful service of publicizing Canadian blogs. I've done something similar, and have had people come down on me for it.

On Transit Toronto, I once posted a version of the TTC's famous black background subway system map, modified to include the Sheppard subway, which at the time was still two years away from opening. I also had a similarly modified map showing what the system might look like if the Queen subway had been built instead of the Bloor-Danforth. A member of the TTC's media relations department contacted me soon thereafter, asking that I remove both maps from the website. The black background maps were TTC trademarks, they said, and they also weren't interested in "confusing riders" with modified versions of the map floating about.

As I was not interested in ticking off the very transit commission I was celebrating, I complied with the request, and we and the TTC have maintained cordial relations ever since. Again, Jim's situation is different, as BlogsCanada flatters the Government of Canada's website only in passing. But in terms of plagiarism, I think it fails the lack-of-additional-creativity test. It may not be vicious in its parody, but it offers Internet users as much and more compared to other parody websites and thus it has that validity.

Jim Elve did not cut and paste HTML and CSS code in order to build his website. He didn't copy the trademarked graphics of the Government of Canada (he built them himself). He is not pretending to be an arm of the Canadian government (a prominently placed disclaimer states otherwise), so there is no plagiarism or misrepresentation here. When all these things are considered, the Government of Canada's complaint against Jim Elve amounts to the use of a three column layout and specific colours in specific arrangements. I think that if copyright were really that clear cut, we'd be a lot less free than we are.

By aggressively protecting their trademark, the lawyers for the Government of Canada website are coming dangerously close to infringing on rights that are currently considered self-evident for libraries. We believe we have the right to refer to and build from information provided by our governments. We have a right to log government material and build archives. When we start to question such freedoms, we run the risk of making our society less open and less democratic.

So, have overzealous lawyers from the Government of Canada walked into trouble? Probably; Jim's ready for it. Does this bear watching? Of course.

Further Reading

Update: This issue has, among other places, appeared in Warren Kinsella's blog. That man gets something like 3000 hits a day. I expect to be hearing about this on the airwaves this evening...

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