Legal Analysis and Commentary from Justia

Digital Parody and the Shell Arctic Hoax: Did the Yes Men Cross A Legal Line With Their Most Recent Brandalism?

Recently, a curious website appeared online.  It seemed to belong to the Shell Oil Company, and it focused on Shell’s drilling in the Arctic.  The site looked authentic, featuring Shell’s logos and trademark, but it wasn’t Shell’s actual site, although it had the same “look and feel.”  If a viewer read any of the site’s content, or looked carefully at the images, however, it became clear that something was very much amiss.

For example, the website included an application where viewers could self-caption photos that were reportedly taken by Shell in the Arctic. The photos included one of a cute baby Arctic fox.

Soon after the website—which was called “Arctic Ready” and had the slogan “Let’s Go”—popped up, a related video appeared on YouTube.  The video seemed to show an event sponsored by Shell at the Seattle Space Needle that went badly awry: A small fountain shaped like an oil rig starts gushing and spraying guests with fake oil. Finally, in the video, what seemed to be a poorly designed media response by Shell Oil only makes everything worse.

As you may have heard or guessed, all of these creations—the website, the video, and even Shell’s supposed response—were part of a hoax created by environmental nonprofit Greenpeace and the Yes Men, a lively group of online activists that makes fun of certain global corporations.  The Yes Men are known for their own form of “brandalism,” where they take a company’s own words and images, and turn them on their head.

Shell has wisely decided to remain low-key about the incident, issuing a July 14 press release that clarified its lack of involvement, but otherwise hoping, it seems, that the whole spoof will just fade from the Internet.

The Shell Arctic Hoax and Other Yes Men Spoofs

As noted above, the supposed Shell ad campaign was actually created by the Yes Men, an international collective of corporate pranksters who often imitate, with the intention of humiliating, giant corporations via spoofs and performance art.

A recent spoof press release, for example, announced that Halliburton had solved global warming.  And one of the Yes Men, having convinced the BBC that he was a Dow executive, went on the air to publicly apologize to the victims of the Union Carbide chemical leak tragedy in Bhopal, India. (Dow acquired Union Carbide.)

In 2007, moreover, two supposed ExxonMobil representatives—an analyst for the Washington-based National Petroleum Council called S.K. Wolff (who was really Yes Man Andy Bichlbaum), and a person called Florian Osenberg (who was really Yes Man Mike Bonanno), addressed a keynote luncheon at Calgary’s Gas and Oil Exposition, a three-day oil-and-gas trade show.  (“Wolff” and “Osenberg” were prominently featured in the 2003 documentary The Yes Men.) Once the duo started handing out candles that were supposedly made of the melted human remains of Reggie Watts, a deceased ExxonMobil janitor, the audience realized it had been tricked.

More on the Yes Men’s Shell Parody Website

The fake Shell website that I discussed above is in typical Yes Men form: It looks legitimate on the surface, from the logos to the corporate contact information. But on closer inspection, it’s a cutting spoof on Shell’s pro-drilling stance regarding the Arctic wildlife refuge.

“For hundreds of years, explorers have battled the Arctic,” the website’s homepage says. “Today, we’re finally winning.”

Also, as noted above, the site promotes Shell’s new “Let’s Go!” Arctic campaign, complete with what appear to be loser Arctic-energy ads. The ads would be tragic if they were actually coming from Shell’s marketing department, but since they’re not, they’re  comical.

Take, for example, the image of the Arctic fox with the slogan, “You can’t run your SUV on ‘cute.’ Let’s go.”

There’s also an image of the sinking Titanic captioned with, “Never again,” which supports the melting of more polar ice, as revenge for the sinking of the famous ship.

The site even includes a game for kids called “Angry Bergs”—an apparent reference to the game “Angry Birds”—which suggests that the melting of polar ice is good “because when the polar ice melts, we at Shell can go up there to get more oil, which can do a whole lot of things.  Thanks to oil . . . Mommy and Daddy can drive to the store to buy you new toys.”

The Yes Men, pretending to be Shell, sent out fake Tweets asking the public not to pass on the embarrassing YouTube video or to visit the website, apologizing for the public relations error.  As one can imagine, this caused the public to do just the opposite, triggering more views of the fake video and website.

Are the Yes Men Engaging in Legitimate Parody, or Unfairly Creating Confusion?

The Yes Men, as artists, have always cloaked their work in the First Amendment, invoking freedom of expression and the right to parody, which is also protected under copyright law. Yet many people believe the Yes Men’s work is genuine.  Indeed, the Internet has been buzzing about how Shell’s ad campaign backfired, and how apparently no one at the company had even noticed that its site was filled with hundreds of protest ads.  When Shell did catch on, it had to send out a press statement disavowing the Yes Men’s work, and making clear that the site was not created by Shell.  But the Yes Men struck back: A fake press release claimed that the company was considering legal action against the scam campaign.

Should We Have Qualms About Using Social Media to Launch Protests and Parodies That Pretend to Be Real?

Social media has taken Internet activism to a whole new level.  Today, a fake video or spoofed corporate website can quickly go viral, through posts, shares, tweets, and links.   And once that happens, it is almost impossible to put the genie back in the bottle.

Social media allow the little guys to have influence when criticizing those who traditionally have significant power.  People can now seek and find large global audiences from the comfort of their own home, with access to a desktop PC.

The line between, on one hand, legitimate protest through parody, and, on the other, libelous misrepresentation or trademark infringement is muddy.  And while this may be protected speech, some critics caution that campaigns may backfire—with similar tactics turned against nonprofits like Greenpeace, which partnered with the Yes Men.

Some critics argue that it would be a more honest and transparent choice for protesters to engage in true civil protest and accept the consequences.  Other critics suggest that parody is acceptable, if it is more clearly and instantaneously recognizable as a spoof, rather than something that fools many viewers.  So a website that called itself “Shill” instead of Shell, and used the a fake but similar logo, to parody Shell, might be seen as acceptable, since it is not an attempt to pass itself off as the real thing.  One corporate spoof, for example, used the logo “Chevwrong” to protest Chevron’s activities in the Amazon.

Parodies Enjoy Strong Protection Under Supreme Court Precedent

In the past, producers or creators of parodies of a copyrighted work have, at times, been sued for copyright infringement by the targets of their lampoons.  But the U.S. Supreme Court has recognized parody and satire to be protected “fair use” under federal copyright law. (As readers may know, parody is using a work to poke fun at, or comment on, the work itself; satire is using a work to poke fun at, or comment on, something other than the work itself).

In Campbell v Acuff-Rose Music Inc., the Supreme Court recognized parody to be fair use, even when it is done for profit.  In 1989, musician Roy Orbison’s publisher, Acuff-Rose Music Inc., sued the rap group 2 Live Crew for its use of Orbison’s song “Oh, Pretty Woman.”  2 Live Crew’s version of the famous song altered the original lyrics, making them much cruder, and in doing so, mocked the original.

The Supreme Court held that 2 Live Crew’s version of “Oh, Pretty Woman,” ridiculed and commented on the earlier work, and thus was protected by the copyright exception for “fair use.”

The Court also ruled that when the parody was itself the product—as was true in the case of the 2 Live Crew song—rather than being used for mere advertising, the fact of commercial sale did not bar the parody defense.

More recently, in Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of the novel The Wind Done Gone, which reused many of the famous characters and situations from Gone with the Wind, but retold the events from the  vantage point of the plantation slaves, rather than that of the slaveholders. The U.S Court of Appeals for the Eleventh Circuit, applying the Supreme Court’s holding in Campbell, recognized that The Wind Done Gone was a parody protected by the fair use doctrine.

Was the Yes Men’s Shell Oil Parody Covered by the Fair Use Exception to Copyright Law?

The Yes Men’s Shell Oil hoax did not immediately announce itself as a parody (though a discerning viewer could detect that that was what it was). And, to be protected by the fair use exception to copyright law, satire or parody should be obvious—maybe not immediately obvious, but at least fairly quickly obvious.

Some critics charge that—with this and other Yes Men campaigns that appropriate corporate logos and images—that is not the case.  To the contrary, they charge, many people may remain confused for a long time about the nature of the Yes Men’s parody websites.  And they conclude that the Yes Men’s parodies thus may not be legitimate parodies, but rather misrepresentations of a company’s image, designed to damage that image in a defamatory manner.

Moreover, as I noted above, even executives and employees of many of the corporations that have been parodied by the Yes Men have been fooled initially when the Yes Men have masqueraded as corporate executives, barged their way into public events, and made speeches there.

The Yes Men Versus the Chamber of Commerce: Is a Confusing Parody an Illegal Parody?

Does the confusion about the Yes Men’s parodies make the parodies illegal?  Some so argue, charging that the parodies and other actions of the Yes Men are mean-spirited, unethical and possibly illegal to boot. To make their case, they once again focus on the fact that consumers/viewers are confused by the Yes Men’s words and actions for a longer period of time than the law would normally tolerate with respect to parody or satire.

In 2009, the U.S. Chamber of Commerce filed a lawsuit against the Yes Men, after the group staged a fake news conference announcing that the business trade group had changed its policy on climate legislation.

The federal lawsuit alleged trademark and copyright infringement, and claimed that the Yes Men staged the press conference stunt for financial gain. “The defendants are not merry pranksters tweaking the establishment,” Steven Law, the Chamber of Commerce’s Chief Legal Officer and General Counsel, said in a statement. “Instead,” he continued, “they deliberately broke the law in order to further commercial interest in their books, movies, and other merchandise.”

Yes Men member Jacques Servin (who also goes by the alias Andy Bichlbaum) said, “It’s really disappointing that the Chamber would take this approach to something that’s clearly political speech.”

The Basis for the Chamber of Commerce’s Lawsuit Against the Yes Men

Servin, who is named in the Chamber of Commerce’s lawsuit, was one of the leaders of the 2009 stunt in which the Yes Men held its fake press conference at the National Press Building in Washington, D.C.

Prior to the press conference, the group set up a website at a web address “chamber-of-commerce.us” The U.S. Chamber of Commerce filed its lawsuit after the Yes Men refused to take down the spoof site.

The fake Chamber of Commerce website appeared identical to the Chamber’s actual site, but it contained a fake page for press releases and speeches, the Chamber’s lawsuit said. The Chamber’s lawsuit called that feature of the site “painstaking, sophisticated design,” which the Chamber argued was meant to ensure that the fake nature of the site would be concealed.

The Yes Men retained the Electronic Frontier Foundation (EFF) as their counsel, and the EFF responded to the Chamber of Commerce on their behalf—disputing the validity of the copyright claim, requesting that the Chamber withdraw its letter, and threatening a Digital Millennium Copyright Act (DMCA) action for knowing, material misrepresentation of a copyright claim under 17 U.S.C. § 512(f).

The Chamber of Commerce eventually abandoned its copyright claim but continued to assert claims for trademark infringement, trademark dilution, cybersquatting, false advertising and more.  On January 5, 2010, the Yes Men, and other defendants calling themselves the Action Factory, filed a motion to dismiss the complaint and a motion to stay discovery.  The motion to dismiss the complaint argued that the Chamber of Commerce’s lawsuit is designed to punish core political speech—the kind of speech that receives the strongest possible First-Amendment protection—rather than to vindicate any actual trademark harm, and should therefore be dismissed.

“The action was a brilliant piece of political theater, but it had a serious purpose: calling attention to the Chamber’s political activities,” said EFF Senior Staff Attorney Corynne McSherry. “This is core political speech, protected by the First Amendment. We’re very pleased that Davis Wright Tremaine—with its long, successful history of protecting free speech rights of Americans—has joined us in helping these activists battle a transparent attempt at censorship.”

In the past, courts have tended to agree with groups like the Yes Men, for U.S. courts have recognized that political parody lies at the heart of the First Amendment, as well as being a type of fair use.  And at least for now, the Yes Men are continuing their work—with Shell now being the latest company to become the target of their pranks.

Shell did the right thing in refraining from suit—given the protected nature of the Yes Men’s speech.  Even if the Yes Men do lose the Chamber of Commerce case, all that will mean is that they will need to use fake logos or company names that are not identical to those of their targets—referring to the U.S. Chamber of Commerce as the “U.S. Shamer of Commerce,” for example, or turning Shell Oil into “Shill Oil”—and thus making the parody easier to detect.

Anita RamasastryAnita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Development. She is also a member of the Law, Technology and Arts Group at at the Law School. Ramasastry writes on law and technology, consumer and commercial law, and international law and globalization.
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  • Jim Senter

    Corporations especially oil companies OWN the media. Anything that gets people to start questioning what they see and read is a good thing. Anything that challenges the credibility and legitimacy of what is little more than a propaganda machine is a good thing. You talk about sowing confusion. The confusion comes from the bought and sold scientists who claim there’s doubt about climate change, who used to claim that cigarettes didn’t cause cancer, claims that are dutifully parroted by the stenographers in the media. The fact that they are so gullible when it comes to someone claiming to be a corporate spokesperson, THAT is the real story here.

    • Jim Sentner

      I have changed my mind. The yes men should burn in hell for their deceptive representation of these wonderful companies! Who knows what evil things can happen they could start accepting credit card payments or ollecting personal information on people who don’t “get it”.

  • Jim Senter

    I would go further. Not only is what the Yes Men doing good, society has a public interest in showing the corporate propaganda industry, aka “the media”, for what it is. There’s another reason besides free speech to shield what the Yes Men are doing.

  • rrb710

    “True evil is when a rose begins to sing.” – - Arthur Machen

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