In case you haven’t noticed (and given the fact most of my readers live in the south, and the fact that the Cincinnati Bengals … well … suck hard, you probably haven’t), there is a major showdown between blogosphere and the NFL brewing. This battle pits the Cincinnati Bengals against the Fan-Sided Blog Network and its StripeHype blog covering the Cincinnati Stripes.

Apparently, the Cincinnati “Football” Bengals — without warning — sent StripeHype (via its network parent Fan-Sided Blog Network) the proverbial lawyerly “nastygram” informing StripeHype and Fan-Sided that if they didn’t cease and desist use of the Bengals identity a lawsuit would be filed. This led to a blow-out between the powers that be at the Fan-Sided Network and the lead writer at StripeHype.

In the end, Fan-Sided backed down at the threat from the Bengals, and the lead writer at StripeHype, quit the blog and has decided to start pulling for the Cleveland Browns (“Hold on, wait a minute, put a little Dog in it! Woof, Woof Woof, Woof Woof…”).

The Bengals — apparently in partnership with the NFL — decided that StripeHype was appropriating the identity of the Bengals and were causing the Bengals and the NFL “serious and irreparable harm.” Ultimately, lawyers for the Bengals and the NFL demanded that StripeHype and Fan-Sided:

See Nastygram, p. 2. <Click to download in PDF Format>

I still just don’t get the position that some institutions take with regard to blogs…

On the first point, I’ll give the Bengals their due, if it’s their trademarked logo, then they have the right to control it. Be that as it may, under the Fair Use Doctrine (See below), I’m not sure that the use of the logo is an infringement in the context it was used (reporting on the Bengals). Newspapers often print team logos next to stories about that team — simply to hel identify the subject matter.

On the third point … well … I understand what they are saying, but wouldn’t Axl Rose and the other members of Guns & Roses also have a claim here as well? While I appreciate they may have trademarked the phrase, the fact remains that the English language is not subject to being trademarked. All that said, I do understand what the Bengals are saying with respect to the use of the phrase within the context of a blog about football, the Cincinnati Bengals, etc.

The second point — at least in part — however, is pretty laughable. Ignoring the issues of helmet designs and uniform designs, telling someone they cannot use a certain color scheme — whether the team uses it or not — is about as absurd a notion as I have ever heard.

Bearing all of this in mind, the larger issue is one going to the heart of the blogosphere — where is the line between “promoting” a team as opposed to “appropriating the likeness” of a team? On one level, this is a question of law and fact, and one which is not always that clear — that’s the stuff that lawyers argue about till they are blue in the face.

On a more practical level – removed from the absurdity of legal arguments made by shysters, degenerates, and lawyers (I can say that, I am one) — is reality. In day-to-day life, what is okay and what is not?

As a general rule, the Fair Use Doctrine is embodied by a series of of defenses laid out at 17 U.S.C.A. 107-118. The most important being the ones found in section 107 which reads:

17 U.S.C.A. 107 (2008) (emphasis added). Also see e.g. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218 85 L. Ed.2d 588 (1985).

This, along with the caselaw construing it, is what protects writers, reporters, teachers, editors and — yes — even bloggers in their reports, analysis, commentary, and other “publications” about whatever subject they choose. While the concepts and court opinions emanating from this doctrine are extremely powerful in terms of the protections they grant, they are defenses (i.e. they are only useful after you are already in court). Thus, they are more academic concepts for most folks, than they are guiding principles.

First of all, I am not going to say that the folks at StripeHype did not cross the line of Fair Use and infringe on the likenesses (copyrighted or otherwise) of the Bengals and the NFL. The reason for this is that — until this story started developing — I had never read StripeHype, and all of the “offending” content has been taken down.

What I will say is this, I think that the powers that be with various teams, schools, institutions, and so forth misunderstand the goal and purpose of the blogger. Today’s blogger was the penny-press writer, pamphleteer, or street corner barker of the late 19th Century. True, the medium and potential reach of the blogger is quite different from those early raiders of the Fourth Estate, but the concept remains the same:

“I have something I want to say publicly, and I’m going to say it…”

Now it does not follow that anyone will actually want to hear what is said (especially in the case of Gate 21) but that is the driving force for most bloggers. Some have an axe to grind, some have a “cause” they seek to promote, some simply want the satisfaction of seeing their thoughts on public display, there are numerous motivations. In the case of sports-related blogs, however, the typical motivation arises from a fan’s dedication to “their team” and their desire to support it more publicly.

In other words, most sports-bloggers — at their basic level — are fans first and writers second.

Thus the question of why a team, league, or player would go after a blog seeking to promote them arises. Now, make no mistake, part of supporting your team often includes bashing your rival — I’m as guilty of that as anyone. There is also a fair amount of satire involved with sports-blogging, which — I suppose — could be taken the wrong way. As best I can tell, none of this was at play in the case of StripeHype — the writers there were fans (stress “were”) of the Bengals. So why go after them?

Well, first of all, the Bengals are hardly new to this. In 2000, they sent a similar cease and desist letter to the anti-Mike Brown site: MikeBrownSucks.com — apparently to no avail since the site is still up and running, and has publicly posted their “Legal Documents Library” which includes their absolutely priceless response to the demand.

Even though I am a lawyer, it seems to me that a quick email asking nicely if StripeHype would remove the logos that the Bengals felt were being infringed upon might have been sufficient. I got such an email from a really nice guy at the Knoxville News-Sentinel asking me to attribute or remove a photograph that I posted which I never realized they owned. I called him, we had a very friendly conversation, I apologized, and I took it down. No harm, no fight, no conflict. He won, I won — and I still read the paper. That, however, just isn’t the way some folks think.

Ignoring what the Bengals “could have done,” however, the only thing that ever really matters when it comes to big-time sports any more is, of course, money. This once again seems to be an issue in the case of StripeHype. The above-referenced nastygram unabashedly keys the fact that they felt StripeHype used these images to make money stating:

See Nastygram, p. 1.

It is true that some bloggers do little more than try and use their “platform” for making money on ads, click-thrus, etc. I have ads here on Gate 21, but — to date — I believe that I have made a total of, maybe, $30.00 — and due to minimum payments on revenues, I have yet to get a single check. The ads are there to try and defray some of the costs associated with the operation of this site, not to line my pockets. This is the case for most bloggers.

Ignoring all of this, at the end of the day, the question remains do teams really want to go after fans who are — at least by most standards — promoting them?

Of course, this question is completely rhetorical — there is no answer. Fortunately for me, Mike Hamilton, the Tennessee Volunteers, and the University of Tennessee have — essentially — adopted the “just ignore them” mentality. Thus, I haven’t gotten any nastygrams (Although, in the interest of disclosure, I have sent quite a few in my day, but never as a result of a copyright issue. Damn lawyers!) and Gate 21, my temple of wasted time, continues on.

In the end, I have a feeling that teams and franchises will eventually have to face the issue of bloggers directly. Purely speculating, I would imagine that collegiate athletic programs will — in the end — be far more willing to embrace bloggers than professional sports teams. Bloggers, however, cannot be ignored indefinitely, simply due to their growing popularity. Whether that face-to-face takes the form of cooperation or legal attacks is yet to be determined.

In the meantime, the Bengals appear to have won this battle — on little more than a threat from a young associate at a big law firm in New York. It is a shame that a team feels the need to attack fans like that, but I suppose they felt it was what they had to do.

In completely turning his back on the Bengals as a result, I’m sure the lead writer at StripeHype felt exactly the same way…

– Go Figure …

For More Information on Copyright and Blogging, Check out the Following:

• Copyright Law for Bloggers – MoonDog
• Citizen Media Law Project
• Legal Guide for Bloggers – Electronic Frontier Foundation
• Chilling Effects Clearinghouse

*Disclaimer: While the writer of this post is an attorney licensed to practice law in the state in which he resides, this post is not intended to give or offer legal advice, or otherwise render a legal opinion on the matters discussed herein. Furthermore, the author does not actively practice in matters pertaining to media law, copyright, trademarking, or intellectual property, and makes no claims as to the accuracy or correctness of any statements regarding the law(s) herein. Should you have questions regarding such legal matters you should consult an attorney licensed in your jurisdicition.

About the Author:  "Lawvol" -- I'm just a guy living in North Carolina who has an unnatural fascination with the color orange. Just because I'm a Tennessee alum and die-hard Volunteer fan doesn't mean that I can't poke a little fun at the Big Orange and anybody else for that matter. Feel free to complain all you want. >> Read more from this author

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