EFF’s Next Fight? Barney the Dinosaur

Online privacy watchdog Electronic Frontier Foundation (EFF) took a break from battling government spying and corporate misdeeds to charge Barney the Dinosaur with violating a Web site owner’s First Amendment rights.

The EFF is taking up the case of a New York City man whose parody of the purple television dinosaur has come under fire from the company that owns the rights to the Barney and Friends franchise.

The suit claims Stuart Frankel’s right to free speech is being infringed by repeated legal threats by Lyons Partnership. EFF asked the court declare Frankel not liable for copyright infringement.

Frankel “has suffered years of baseless legal threats over his parody of the Barney and Friends television show,” according to an EFF statement.

The site depicts Barney as he appears in public and then afterward, transformed with horns, a pentagram and the number 666 on his chest.

The site also includes links to other parodies, including the “Jihad to Destroy Barney” and the “Barney Cookbook.”

Since 2002, Lyons’ legal team has sent Frankel four cease-and-desist letters claiming the site violates copyright and trademark protections. The company continued sending the letters, ignoring responses by the EFF, according to the lawsuit.

The letters, the most recent sent in June, threaten contacting Frankel’s ISP if the material is not removed.

“Lyons’ threats jeopardize Dr. Frankel’s free expression rights and commercial relationship with his ISP,” according to the EFF lawsuit.

Why today’s lawsuit?

“Apparently, Barney’s lawyers don’t respond to anything else,” Fred von Lohmann, EFF’s senior intellectual property lawyer, told internetnews.com. Von Lohmann said parody sites are protected by the First Amendment and fair use.

“It’s time for Barney to call off his lawyer armies and get back to entertaining children,” von Lohmann said in a statement.

The federal lawsuit aims to resolve the rights dispute and relieve “the anxiety created in Dr. Frankel about the lawfulness of his creative expression,” according to the filing.

In court papers, the EFF said Lyons has filed numerous copyright protection suits against parodies, including more than 77 lawsuits in 1998 and court action against a sports mascot.

“Barney is quite an aggressive litigant,” von Lohmann said.

While Frankel is assisted by the EFF and a San Francisco attorney working
pro bono, other parody sites after receiving cease-and-desist letters have gone offline, according to the EFF attorney.

“The misuse of intimidating cease-and-desist letters for censorship is a growing problem online,” EFF staff attorney Corynne McSherry said in a statement.

This isn’t the first time the EFF has come to the aid of online parodists. In 2004, EFF helped JibJab Media defend its “This Land” animation from claims by Ludlow Music that the political creation infringed Woody Guthrie’s song “This Land is Your Land.”

The EFF discovered the famous song had entered the public domain, according to von Lohmann.

The law firm that sent the Barney cease-and-desist letters, Gibney, Anthony & Flaherty, did not return calls and e-mails asking for comment by press time.

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