Shot Through the Minge, and I'm Too Late

124 of you have voted, but only five of you have guessed that the cranky celebrity of the day is ... OPRAH!:

Her lawyer's email and my response after the jump – and I will update as warranted.

And yes, the threat came from an actual lawyer, not from a minge, although the two terms are virtually synonymous anyway, right?:

Dear Matt and Robbie:

This law firm represents Ms. Oprah Winfrey and Harpo, Inc. ("Harpo").

It has recently come to our attention that your website, malcontent.typepad.com (the "Website"), is featuring photographs and video excerpts from The Oprah Winfrey Show.  The photographs and video excerpts are located at the following link on the Website: http://malcontent.typepad.com/malcontent/oprah/index.html. This page of the Website uses photographs and video excerpts from episodes of The Oprah Winfrey Show which featured the following guests: Jake Gyllenhaal, Heath Ledger, Anderson Cooper, and the cast of Will & Grace.

Harpo owns the copyrights in and to each of these photographs and video excerpts which are included on the Website. Harpo has no record of any contract or agreement with you that grants to the right to feature these photographs or these video excerpts on the Website. The inclusion of these photographs and video excerpts on the Website is in violation of the U.S. Copyright Act, 17 U.S.C. Sec. 101 et seq.

Since your actions constitute copyright infringement, we insist that you immediately:

(i) Remove each of the photographs of Ms. Winfrey and/or show guests on the set of The Oprah Winfrey Show, as well as all video excerpts of The Oprah

Winfrey Show, that appear on the Website; and

(ii) refrain from using any and all references to Ms. Winfrey, "The Oprah Winfrey Show", and any elements that incorporate Harpo’s intellectual property and/or Ms. Winfrey’s name, image and likeness without first having obtained Harpo’s express, written consent.

Nothing in this letter should be construed as a waiver of any legal rights, at law or in equity, that Harpo and/or Ms. Winfrey may have; all such rights are hereby expressly reserved.

Please reply within five (5) business days of your receipt of this e-mail. If we do not receive a response by that date, we will presume that you do not intend to comply with the terms of this e-mail, and we will consider all remedies (legal, equitable and otherwise) at our disposal.

I look forward to receiving your response.

Sincerely,

THE ENTERTAINMENT & INTELLECTUAL PROPERTY GROUP, LLC

Jeffrey A. Friedman, Esq.

The Entertainment & Intellectual Property Group, LLC

[Contact information mercifully redacted, although his address is on "Wacker" Drive]

---

Mr. Friedman:

I am indeed in receipt of your email, and this will constitute my response to you.

As you are no doubt aware, 17 USC § 107 provides for limitations on exclusive rights to copyrighted content under the "fair use" standard, specifically:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

There is not now, nor has there ever been, willful infringement on the part of my weblog, either in general terms or specifically as it relates to your client.  As a trained and degreed journalist, I am interested only in "commentary, criticism and reporting" on media materials, particularly those of interest to the gay community.  (Indeed, all of the interviews you mention are of interest to GLBT Americans.)

Surely your client would not want to prohibit any and all valid and protected "fair use" of her image and content.

I would be interested to know how you believe The Malcontent weblog has run afoul of the fair-use standard and, if so, how we might come within the bounds of fair use, short of a blanket prohibition on any use or references to your client whatsoever — perhaps in the inclusion of a stronger disclaimer as to the holder of the copyright, or a reduction in the substantiality of the material in question.

Clearly, the law does not support the over-reaching demand that you have made.

I look forward to your response.

Best,

--MATT

"The Malcontent" weblog

Comments

[Jamie]

Oh, crap, I almost guessed her, too. Probably wants to recoup all the money from those diamonds she gave away at her "Legends Ball."

Oops. Here comes the lawsuit against me using that phrase now. Geez.

[Kevin]

Excellent reply.

If you were to have complied, you would have given their lawyers standing to argue they were in their right, by successful defense of their copyright, to demand that you revoke your own constitutional right to free speech under the First Amendment.

I mean, really...."any and all references"?? What a laugh.

MISS WINFREY. OPRAH. HARPO PRODUCTIONS!!!

Come and get me, oh Jeffrey of Wanker Drive.

[louis]

Ooooo dude; OPRAH!! Talk about David and Goliath! You've got bigger ones than I could ever hope to have, that's for sure.

Good luck man!!!

[H]

First Amendment Forevermore!

[Patrick]

Oprah loves to pick a fight. She's been battling her weight for ages. She never seems to win that one. I think she'll lose this one too.

[Aatom]

hmm...i honestly didn't see that one. that sux, because i kind of love the old girl.

grow up, Oprah!

[Kevin]

Cue Imperial March from The Empire Strikes Back.

[Tommy]

*heavy breath, heavy breath*

I'm your Mother, Luke!

Love, Oprah

[rod]

Dear Matt and Robbie:

This firm represents Mr. Manhattan Offender and Mo, Inc. ("MO").

It has recently come to our attention that your website, malcontent.typepad.com (the "Website"), is featuring photographs and video excerpts from Manhattan Offender. The photographs and video excerpts are located at the following link on the Website: http://malcontent.typepad.com/malcontent/faggotry/index.html. This page of the Website uses photographs and text excerpts from episodes of The MO Show which featured the following guests: Amanda LePore, Buck Angel, Matt "the Malcontent", and the cast of Will & Grace.

MO owns the copyrights in and to each of these photographs and text excerpts which are included on the Website. MO has no record of any contract or agreement with you that grants to the right to feature these photographs or these text excerpts on the Website, but you you know how MO drinks, so, you know, whatever. The inclusion of these photographs and text excerpts on the Website is in violation of the U.S. Copycat Act, 17 U.S.C. Sec. 101 et seq.

Since your actions constitute copycat infringement, we insist that you immediately:

(i) Remove each of the photographs of MO and/or guests on the set of manhattanoffender.com, as well as all text excerpts of The MO Show, that appear on the Website; and

(ii) refrain from using any and all references to Manhattan Offender, manhattanoffender.com, and any elements that incorporate MO’s intellectual property and/or MO’s name, image and likeness without first having obtained MO’s express, written consent. This would include any reference to the word "offender" or "Manhattan". Oh, and trannie. We own that too.

Nothing in this letter should be construed as a waiver of any legal rights, at law or in equity, that MO and/or manhattanoffender.com may have; all such rights are hereby expressly reserved at a table for eight at Michael's (and you are paying).

Please forward this very lucky e-mail to five friends within five (5) business days of your receipt of this e-mail. If we do not receive proof of forwarding by that date, we will presume that you do not intend on have the luck of an angel, and we will consider all remedies (legal, equitable and otherwise) at our disposal.

Don't even bother with a response.

Sincerely,

THE INNERTAINMENT & INTELLEKTULE PROPERTY GROUP, LLC

[Gunn]

I love MO.

[Chris]

The cunt thinks she's Jesus, just like Kathy said.

[greymatters]

Pope-rah strikes again!

This will be fun, much like Exodus and Falwell keep needing to learn. Learn what, we don't know. Idiots.

What is it with CAD crap and televangelists (of which, Pope-rah is one -- granted of a perversely insidious bent outside of the usually recognized perverse bent)??

[Dave]

This further supports my theory that Oprah is the anti-Christ. Just you wait... She gonna get us all.

(Just kidding Oprah. I think you're swell. Er, nice. Sir.)

[Brian]

"refrain from using any and all references to Ms. Winfrey, "The Oprah Winfrey Show", and any elements that incorporate Harpo’s intellectual property and/or Ms. Winfrey’s name, image and likeness without first having obtained Harpo’s express, written consent."

^^Are they kidding me? Wow, good job not bowing down to them. I love how you actually have an intelligent, researched response to give them. They were probably counting on you being ignorant of the legal issues. Personally I can't stand Oprah. She thinks she's above it all as though she's this all knowing entity.

[gayasianboy]

It's interesting how some of you were praising Winfrey in the post about "Oprah on the VIEW," yet now she has become a bitch in your eyes because of this incident.

For all we know, Oprah dont even know anything about this petty issue. She has other things to worry about. It's her employees that are the bitches.

However, I do agree that at times Oprah does think she is all that. I love how she cuts off/overtalks her guests- when they are talking- jsut cuz she has something to say. Her occasional female psychologist guest has to agree to what Oprah says, sucks up to Oprah, and lets Oprah cut her off.

At times, she also makes subtle racists remarks..two times which refered to white women having thin lips / herself not having thin lips which is a good thing in her mind. etc.

[el polacko]

... but we'll still see paris won't we, mingie ??

[Scott]

Wow, so that little bug at the upper left corner about days without a C&D order isn't just fun and games...!

Yes, rest assured The O has no clue about this little action. (She's too busy feeding salmon paté to Stedman and premium pet food to Sophie--or is it the other way around?)
Her company bean counters probably just pay E&IPG a bit fat retainer every year to have a bunch of temps troll the 'net and look for "violations". I would be willing to bet their chosen in-house shyster who won the assignment lottery for the above waste of electrons is just barely out of law school and is only a step or two above the paralegals he breezes past on the way to his executive cubicle every day.

As for the response, way to go! I would love to see what canned tripe they come back with; I'm sure it will be rich. The intellectual property rights movement has gone way too far...don't these idjits realize free promotion and publicity when they see it?

[Craig Ranapia]

Amusing to find this in my morning newspaper:
Move over, Bill Clinton, your moment in the spotlight has ended. The former president's record advance of $12m (£6.4m) for his autobiography has been eclipsed by the chatshow host Oprah Winfrey, who has signed a deal with the publisher Simon & Schuster for a book about keeping weight under control.

The deal, announced at the annual Book Expo America in Washington, is claimed to be the biggest signed for a non-fiction work, though the amount was not disclosed. Winfrey now assumes her place above Mr Clinton and the former Federal Reserve chairman Alan Greenspan, who was paid $8.5m for his book.

What fucking next - Britney Spears, Michael Jackson and Courtney Love getting together to write self-help books on child rearing and marriage? Seriously, this woman's psychobabbling narcissism (along with her little Mini-Me Dr. Phil) strikes me as more and more poisonous as time goes on.

[Scott]

Funny book topic, since I swear I saw a US supermarket tabloid a week or two ago with a cover story about how, due to some "lifestyle change", The O may be doomed to stay heavy for the rest of her life!

[LouisC]

Oprah is way over rated. Lots of fluff and very little content, when you really analyse it!

[Jason]

This probably stems from her desire to maintain "brand control." And I would say that Scott has hit the nail on the head.

It will be interesting to see where this leads.

[oprah's sex toy]

hey but if you think about it, you cant really blame the chick....she was poor at first, yeah, but now she has been super-rich for many decades...she has gotten used to the the fancy treatment and expects to be treated with priority.....
so we can really blame her if it got to her head a little.

[LikeOMGFab]

What the hell is OprahCo. going to do? Sue? Take the last $5 out of your pocket? Oh please.

GO ROBBIE AND MAL!!! FIGHT THE POWER MAD MACHINE THAT IS OPRAH!!! WHOOOOO!!!

[Pot]

Oprah better leave you alone or she'll be risking her Nobel Peach Prize.

[Dan]

Well... good luck, tho I think you're gonna have a helluva fight on your hands. The case law is decidedly against you, and a legal victory on your side would overturn decades of precedence. To win using a 'fair use' argument, you'll have to convince a judge that the inclusion of 5/10/15+ minutes of directly copied video is somehow vital to your critique, commentary, whatever. This doesn't seem to be the case, as you generally provide pretty limited commentary (often less than 200 words) with even the most lengthy videos. Further, you have taken steps to separate the video from the commentary (creating a separate web address, malcovision.com; specifically advertising your video clips without any mention of the commentary in your blogads). This is going to look suspect. What's more, let's take a look at the 'mitigating factors' surrounding fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

I'm guessing you're not a registered non-profit. If malcontent.com makes a profit, I'm guessing it goes in your pocket. Nothing wrong with that, capitalism rocks. It's just that it doesn't help you from a fair-use standpoint.

(2) the nature of the copyrighted work;

To create original content for her show, Oprah employs hundres of people, spends millions of dollars, and works countless manhours. To this end, she has every right to be protective of her work's end product.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Well, this goes without saying. You've directly copied ? hours worth of originally produced content. Slam dunk here.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Considering how much money NBC/ABC/etc is making off of selling video clips on iTunes, I think you could make a very persuasive argument that you're directly undermining the value of her show. Why spend a 2-3 bucks on an entire show when I just watch the interesting parts for free on malcovision?

Am I saying this to be an asshole? Well, you know me, of course that's part of my motivation. I'm also telling you this so you can better position yourself to survive what might soon be a legal feeding frenzy. Lawyers are like sharks, once Oprah's gotten a little blood from you, they'll all be after you. Unless you've got pretty deep pockets, you might want to enlist the help of organizations like the EFF or maybe even (gasp) the ACLU.