Ebaum's World Article
 

Court TV (Via CNN)
2/28/03

Is Judge Judy calling you? A media giant wants to know
By Steve Irsay
Court TV

(Court TV) -- You pick up the phone and the unmistakable
rasp of TV's Judge Judy crackles over the line.

"Good afternoon. Tell me your name," the acid-tongued arbiter
says.

When you don't respond, she becomes impatient. "Hello?!" And
then, "Do you take any prescribed medications, sir?"

You hesitate.

"Why don't you pay attention?" she snaps. "I eat morons like you
for breakfast."

Click.

Welcome to the world of "soundboards" -- online audio samples
that have propelled the time-honored tradition of prank calling into
the Internet age.

Hundreds of clips from the likes of Judge Judy to Arnold
Schwarzenegger to Homer Simpson are a click away on sites like
eBaumsworld.com. The site contains some two dozen celebrity
soundboards and a collection of calls made using them, along with
a varied collection of photos, jokes and links. EBaumsworld.com
bills itself as "a hilarious collection of media for the masses."

But according to one media giant, it's not.

Viacom threatened the site with a lawsuit if clips of Judge Judy,
> Dr. Phil, Howard Stern and Tim Meadows are not removed. That
was last November. The judge, the doc, the shock jock and the
Saturday Night Live funnyman are still available for all your
prank-calling needs.

"Right now we are calling their bluff," said Neil Bauman, vice
president of the site and father of its creator Eric "eBaum"
Bauman. "This is a 23-year-old kid operating a Web site out of his
father's house. We want to see if big bad Viacom can shut him
down."

Neil Bauman says he expects to get a summons any day.
According to a Viacom spokesperson, both sides are simply still
"in conversation."

"When we see that our copyrights are being infringed we want to
do something about it," the spokesperson said. "We are a media
company and that is what our whole business is about. We don't
want to see our copyrights diluted."

If this David and Goliath battle over cyberspeech materializes it
will be the latest in the struggle between billion-dollar
corporations and bedroom Webmasters over the use of highly accessible
materials. Poking fun at celebrities and corporations using
protected material has long been the low-risk business of
homemade fanzines generally distributed far below the radar of
corporate lawyers. But the Web has changed that.

"Before the Internet, people doing parodies did not have a kind of
global reach," said Fred von Lohmann, a senior staff attorney for
Electronic Frontier Foundation, a digital civil liberties watchdog
group. "We are seeing these legal issues more and more because
when you are on the Internet you are awfully easy to find."

Viacom was not the first company to find eBaumsworld.com less
than amusing. In September of last year lawyers for the makers of
Corona Extra beer sent Eric Bauman a letter to discuss the
unauthorized use of the beer's trademark.

"It was material that was passed around on the Internet for five
years," said Eric Bauman. "It was a dancing beer bottle. It's
funny, and its still on there."

Lawyers for the beer, who called the site "very cute" in their
informal letter to Bauman, reached an undisclosed agreement
allowing him to use the graphic without facing further legal action.

"It was an example of ask and you shall receive," said Joseph
Yanny, a lawyer who represents Corona. "Litigation is a form of
war and nobody really wins in war. Someone just loses less than
someone else."

A week after the Corona letter, Bauman got word from lawyers
representing child-favorite Mister Rogers. They did not think
audio clips of their client belonged in Bauman's neighborhood and
asked that they be removed under threat of a lawsuit.

"I had clips from his show and they sounded perverted," said Eric
Bauman. "They were funny, but I decided that they were too
mean-spirited and I took them down."

Although Bauman is standing up to Viacom for now, many other
small-time Webmasters have been quick to fold in the face of
cease-and-desist orders from corporations threatening to sue.

Since the mid-1990s the proliferation of unauthorized Web sites
has been met with a growing corporate crackdown, said von
Lohmann. And parodic pranksters are not the only targets. Fan
sites have also felt the legal wrath.

Five years ago, Viacom went after the notoriously devout Star
Trek fans that posted scripts, pictures, sounds and original fan
fiction on their Web sites. Soon, online devotees of programs like
"Buffy the Vampire Slayer," "The Simpsons" and even cult
cooking smash "Iron Chef" were getting similar letters from
miffed corporate attorneys.

Most of the skirmishes ended in a Webmaster either modifying a
site or taking it down to avoid costly legal battles. In court,
eBaumsworld.com may have a chance on some points, according
to von Lohmann.

"Its hard to see how copyright issues would protect such short
snippets," he said, noting that other brief references like titles
and phrases are usually not protected. In any case, the length of the
clip might not matter as much as the way the clip is used.

And if the hundreds of clips on the site are found to violate
copyright laws, eBaumsworld.com stands to lose a ton of money.

"Damages can be up to $150,000 per work," said von Lohmann.
"If anything on the site is copyrightable the damages can quickly
reach the moon."

Parody or satire?

Regardless of who's laughing at eBaum's antics and who's not, the
fate of the site may rest on who a court determines the joke to be
on.

The law makes a distinction between parody, which uses
copyrightable material to make fun of the material itself, and
satire, which uses the material to poke fun at something else.

"If you are using the thing to make fun of itself, the person who
owns it probably won't license it to you," explained von Lohmann.
"So the First Amendment steps in to let you use it."

The copyright exemption for parody, which could protect
eBaumsworld.com, was strengthened by a 1994 Supreme Court
ruling that rap group 2 Live Crew's parody of Roy Orbison's song
"Pretty Woman" was protected speech.

Viacom goes beyond copyright and trademark allegations,
claiming violations of publicity and privacy rights. These are
typically invoked to protect celebrities from unauthorized use of
their names and likenesses - including voices - for commercial
purposes.

But the site is hardly commercial, claims eBaumsworld.

"If we were marketing Judge Judy posters, if we were marketing
Howard Stern CDs then that would be a misuse of fair trade,"
said Neil Bauman.

The recently incorporated site makes the equivalent of about $2
an hour, Bauman said. The site's advertisers include a small
clothing company and a men's Web portal.

As for the celebrities themselves, the reactions have been mixed.
According to Bauman, Judge Judy, whose real name is Judith
Sheindlin, is particularly peeved at the use of her acerbic quips on
his son's site. But Howard Stern didn't mind a bit and featured
eBaumsworld on his radio show.

Does it matter what they think?

"The celebrities are not the ones in charge," said von Lohmann. "They don't actually own themselves. All of their fame is actually owned by some large entertainment company."

If a lawsuit does come, Neil Bauman is realistic about his chances
against Viacom.

"Even if we win, at that point they'd appeal and drain us dry," he
said. "Financially, obviously we don't stand a chance."

The site's legal defense "war chest" of about $1,000, culled from
fan donations, has already been drained by legal consultation fees.