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Will's Web Watch: Kermit on drugs as IP rights go up in smoke

Who owns what? And just how protective can they afford to be...?
Written by Will Sturgeon, Contributor

Who owns what? And just how protective can they afford to be...?

In the first of his new columns looking at the less-travelled areas of the web, Will Sturgeon comes across a picture of Kermit the Frog that would make Walt Disney turn in his grave - and discovers that it's all too easy for a company to end up looking like a muppet if it fails to protect its intellectual property properly... The latest intellectual property row to arise on the internet centres on everybody's favourite Muppet, Kermit, being portrayed as a pot-smoker. The email-born bit of Photoshop wizardry appears to have originated in Chile and is already attracting the attention of a wider worldwide audience. While the artist behind the series of pictures - which show Kermit rolling and smoking a joint - may have intended it as a joke, a firm such as Kermit's parent Disney perhaps wouldn't see the funny side. The misrepresentation of trademarked people, figures and logos has become a matter of serious concern for many companies worried about the damage it could do their image. Anybody with a well-known brand identity is set up for a fall. The bigger they are, the more of a target they are - especially online. Recipients of this email may be put in mind of similar, largely harmless, pranks, such as Lego porn (don't go there if you're easily offended) - in which the stiff limbed children's toys were photographed in numerous compromising positions. Similarly famous figures, with protected image rights, have been the victims of 'jokes' involving faked images distributed online. Pictures claiming to be "100 per cent genuine, Britney as you've never seen her before" are often little more than a Photoshopped amalgam of Britney Spear's head on the body of a topless model. Similarly, shots of celebrities being posted on sites without prior permission can be the subject of legal complaint, though tracking them all down is a mammoth task. Then there is the related issue of cybersquatting, and a whole host of websites designed to ape major companies' own sites. Many of these sites deface corporate logos or use corrupted versions of their URLs - such as NTHellworld which borrows heavily from the branding of NTL to attack the UK cable provider. McSpotlight is another site which abuses the recognised branding of its adversary - no prizes for McGuessing who it is. For more of the same, check out the Murder King website. In some respects you're nobody until you have your first protest website or been a victim of your first faked image but are major companies likely to accept such a backhanded compliment with good grace? David Naylor, a partner at law firm Morrison and Foerster, said instances of URL abuse are among the hardest to resolve, citing the case of Asda, which lost its fight to have Asdasucks.com removed from the web. Instead he suggests more pre-emptive action. "In some circumstances, it may make sense for clients to consider whether they want to buy-up close variations of their domain name and any likely alternative URLs," said Naylor, though he admitted that covering every possible derogatory alternative to a URL is practically impossible. However, fighting such a case through the courts is no less of a headache. "In order to claim trademark infringement you generally have to be able to prove that confusion has occurred. In the case of deliberately 'anti-' websites, such as Asdasucks.com, it's pretty unlikely that visitors to the site would ever be confused about whether it was a genuine Asda site. As a result, companies like Asda are finding it increasingly difficult to win cases like this," Naylor said. Companies must also be careful about the potential of such cases to backfire. While many may have a sense of humour by-pass where such activities are concerned, most are aware that lengthy legal action against independent website owners is a potential PR disaster. Naylor said: "Large companies need to be careful when it comes to throwing their weight around as it can easily backfire on a PR level. Some companies are able just to rise above it and that may be the best strategy." According to Naylor, contacting the ISP which hosts the offending site and taking the grievance through its established channels is a worthwhile process which companies would do well to investigate before diving headlong into legal battles. In the case of image rights or the misrepresentation of a trademarked image the law is even more of a grey area. The UK courts have until recently been very reluctant to acknowledge or protect any rights of celebrities in their own image. Case law is littered with examples of failed legal actions in this area. Another challenge in such a rapidly developing legal field is working out what rights have actually been infringed and what the most appropriate legal basis is for bringing any action. Some celebrities may claim invasion of privacy - as with Catherine Zeta Jones' and Michael Douglas' high court action against Hello magazine. Others may claim defamation and some may fight for their right to royalties on the basis of some form of intellectual property infringement - for example if their image has been used without permission to endorse a product. Much of the problem also rests on being able to establish and quantify the damage done and the motives of the individual behind the offence. As if the lack of clear precedent in any of these areas and the obvious complexity of there being so many relevant sections of the law weren't problem enough, the internet has made the issue even more of a headache. Naylor said: "With the internet now you're never going to see a situation where people have complete control over every use of their image online." In a sign of the times, updated US legislation passed in 1998 covers trademark counterfeiting and also includes items on the dilution of famous marks and celebrity impostors. Of course it's one thing being entitled to prosecute somebody - but in these online times finding who you should prosecute is not always so straightforward. Naylor cited one recent case of a complaint against an individual accessing the web using an Asian ISP to post defamatory material to a website based in Canada and from a webmail account registered in the UK. In law enforcement terms such a situation would probably be filed under 'more trouble than it's worth'. But when corporate America can track down its detractor, rest assured it will do all it can do punish them. In August last year, Ford took exception to one website using the motor company's own advertising slogan to pillory it in the light of a round of lay-offs. "Ford, where quality is job 1" became "Ford, where finding a job is job 1". Ford was not impressed. The lawyers were mobilised and the offending site was closed down until the matter could be resolved. But such cases are still reasonably few and far between. Companies appear resigned to the fact that the web will have its way. If McDonalds fought every negative, potentially libellous comment posted on the web it would be equivalent to trying to hold back the tide. It would be similarly impractical for Britney Spears' legal team to attempt to remove every picture - faked or otherwise - which was available online without prior permission. They may not like it but these problems are here to stay. Have you seen anything online which deserves closer examination? Send you comments and nominations to editorial@silicon.com.
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