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Batiuk lawyers force down Funky commentary blog (UPDATED)

WordPress.com received a cease and desist letter from attorney’s representing Funky Winkerbean and Crank Shaft creator Tom Batiuk demanding they remove two blogs: sonofstuckfunky.wordpress.com and stuckfunky.wordpress.com for violations of “unauthorized use of the Funky Winkerbean name, trademark, or comic strips.” The site was a daily commentary blog – similar to Comics Curmudgeon – that focused on the Funky Winkerbean feature. The letter also requests the blogging service to reveal the name, address, and email of the blog author. Since the blogs have been removed, we know WordPress complied with that portion of the letter.

After the wordpress blogs were pulled down, the blogger launched sonofstuckfunky.com and removed any comic images. Daily posts now link to the comic instead of embedding it.

The author writes that he’s unsure of his next move.

I’m still reeling from having the plug pulled, then was feeling great about being able to move the blog so quickly. Now I’m feeling pretty anxious. I don’t have a lawyer, I (obviously) don’t have a deep knowledge of copyright, and really don’t need to get sued.

This turn of events ought to tell you everything you need to know about Tom Batiuk’s sense of humor.

I will collect my thoughts and decide on the course of action going forward. In the meantime, thank you, friends, for your support.

The larger question in my mind is the affect this will have on a host of other commentary blogs such as The Comics Curmudgeon.

UPDATE: I sent an email to Josh Fruhlinger of The Comics Curmudgeon. His blog is one of the most popular comic commentary sites on the web. I asked what this development meant to his site.

If I had to guess — and this is a totally uneducated guess, but it makes sense to me — I’d say that the use of comics on my site falls under fair use because I don’t have the same comics every day. I don’t compete against (say) the Houston Chronicle for someone looking for their Mary Worth fix, since I don’t carry Mary Worth every day. Whereas a one-comic blog like Stuck Funky is essentially syndicating Funky Winkerbean without paying for it. But there are plenty of one-comic blogs out there that do the same thing and seem to be unscathed, so I’m not sure exactly what’s going on.

He notes that he has been running his site for over six years and has never had an issue with the syndicates or their cartoonists.

UPDATE #2 I was able to contact the blog’s author, “TFHackett” for a response. This is his response:

My main reaction was surprise; I found out about the blog being taken down the same way the readers did: I went there, and it wasn’t there. Only when I contacted WordPress support did I find out that it was due to copyright. If Tom Batiuk was aware of the blog’s existence, it would have been a simple matter for him to email me and tell me to stop posting the comics.

I’m a lifelong fan of the newspaper funnies, and also a fan of of many of the blogs that critique them. Son of Stuck Funky was spun off from another author’s blog, Stuck Funky (which was also cited in the C&D and has been disabled). After that blog’s author stopped posting daily updates, I brought the community with me to the new blog.

He continues that he hopes that by removing all comics and other intellectual property that it will end the legal dispute.

Community Comments

#1 Ed Power
February/17/2011
@ 4:11 pm

Oh c’mon! If there were a blog praising ‘Funky Winkerbean’ using the same images, Tom would be doing interviews for them. What a pompous ass.

Just because he decided not to be funny with his strip anymore, doesn’t mean other people have to take him as seriously as he does himself.

To put it a way a cartoonist I respected once put it:

“Expression, EVEN WHEN WE ARE UNCOMFORTABLE WITH WHAT IS BEING EXPRESSED, remains our sanest method of understanding one another and exploring our common humanity.”

That caartoonist was Tom Batiuk on Sept. 17, 2009. Hypocrite.

http://comics.ganneff.de/2009.09.17/Funky%20Winkerbean-2009.09.17

#2 Drew Beran
February/17/2011
@ 4:35 pm

Ed, is there a site that serves up My Cage comics without paying you anything for them? I’m curious enough to read your strip, but I’d like to respect your stance on freedom of expression by making sure you never see any revenue from my reading of your strip.

#3 Emily Kesselman
February/17/2011
@ 5:43 pm

I agree with Ed; there is no way he’d get this pissy with FW fansites. In fact it doesn’t look like he HAS taken any legal action against any fansites. I’d say this is probably for one of two reasons.

1. he’s a pompous hypocrite bitter of the fact that nobody who reads the comics takes him as seriously as he takes himself.

2. there AREN’T any FW fansites.

Anyways, he might not be paying for syndication, but neither is he making any money from the deal. He’s putting his own time and effort into this blog (and now, paying for hosting) without any payback except for I guess a humble fanbase. I don’t even think he has a donations paypal button.

In the end, like it or not, TomBat’s most loyal readers are the ones that comment on SOSF and Comics Curmudgeon.

#4 Ed Power
February/17/2011
@ 5:47 pm

Well, we were cancelled, so no. But when we weren’t, I would’ve been fine with someone re-running it. Like this site did:

http://christopheryublogtime.blogspot.com/2010/02/my-cage-and-pearls-before-swine.html

And again Drew, did any pro-Funky sites get cease and desist letters? Show me those sites’ lawyer letters and we’ll talk Drew. Also, were these people making money off the sites? If not, wouldn’t it be the same as posting Funky strips on your facebook account?

Don’t worry about Tom. He makes plenty. No fans are tuning out from the newspaper sites (or not reading newspapers) to follow the strip someplace that is making fun of the strip. And the people that read it on those sites wouldn’t be reading it if NOT for those sites. Heck, there are probably readers who read Funky on the Funky “dislike” sites who read Funky on the newspaper sites to prep for when the blogger post his/their comments.

#5 Jesse Cline
February/17/2011
@ 6:09 pm

“2. there AREN?T any FW fansites.”

Not so fast!

http://www.angelfire.com/va/funkyw/

#6 Andrew Farago
February/17/2011
@ 6:49 pm

Josh’s take on it sounds right to me. Focusing on a single feature every single day is essentially syndicating it without paying the creator. Funky Winkerbean only has a limited archive online, and having a website collect every single installment every day, critical or not, is taking away traffic from Batiuk’s authorized venues.

#7 Dan Olson
February/17/2011
@ 10:33 pm

Over at techdit, Mike Masnick, has coined the phrase “The Streisand Effect”. Which basically means that making a big stink about a small annoyance only makes more people aware of what you were hoping would go away.

I had never heard of sonofstuckfunky before this this, but as soon as I submit this I’ll be checking it out.

#8 Mike Peterson
February/18/2011
@ 5:17 am

I’m no fan of Funky (Cannot imagine a team forfeiting a tournament game because of an injury to one player — has Batiuk never heard of the Gipper?).

That said, this is not unprecedented. My recollection is that the Keanes tolerated “Dysfunctional Family Circus” until the reader comments became unspeakably vile, then asked it to be shut down but perhaps with a suggestion that a c+d letter could be written if needed. And Lynn Johnston or her syndicate did send a c+d to someone who was mocking FBOFW, though she herself reprinted Lio’s acerbic sendup of the strip on her website.

Moreover, a number of very affectionate Calvin & Hobbes tribute sites have been shut down. It’s not all about the snark.

I would have to agree with Josh’s take that using different strips each day is quite different than going after the same strip continuously. I suspect that Mark Trail, Mary Worth and Apt 3G feel like they’ve got starring roles on his blog, but he does spread the pain around. But I informally checked the waters before launching Comic Strip of the Day.com and it’s the exclusive use that really creates the issue. (Though praise also does go down better than mockery, yes.)

As for whether the guy makes money from the blog, it’s not relevant. It’s a matter of detracting from the creator’s franchise. Once you’ve taken my wallet, I don’t really care whether you spend the money or toss it in the wastebasket.

#9 Jeremy Nell
February/18/2011
@ 6:20 am

Unbelievable move from Funky Wankerbean.

Why does Tom need the blogger’s personal info? Does he want to become a dictator?

Badly played, Tom.

#10 Drew Beran
February/18/2011
@ 9:22 am

In looking at the facts, I just don’t think Batiuk went after this blogger solely over his criticism. Batiuk’s been doing this professionally for how long? Surely he’s developed a thick enough skin after all these years to handle one site’s criticism. He does have a bunch of money to tell him he’s a good cartoonist and tuck him in at night, right? I’d say give him the benefit of the doubt that he handles critics as well as any other professional cartoonist does.

So to see that this site was shut down, knowing that it was running the strip every day, and ascertain that it was the criticism that was the target, is a leap in logic I won’t make. There is criticism all over the internet, and as has already been mentioned in this thread, there are plenty of sites that haven’t been shut down that criticize strips. Until we see some of those being targeted, it seems the reason this one was shut down was because it ran Batiuk’s strip – his art, which he gets paid to create – without permission and without paying him anything for it AND it ran his strip for the sole purpose of tearing it down. It an easy target. Does anyone have links to sites that run Funky Winkerbean daily, without paying for it, in order to praise it? If we had some of those, and Batiuk didn’t sic his lawyers on them, then we’d have more of a case that Batiuk is silencing critics.

#11 Tom Falco
February/18/2011
@ 9:28 am

It’s against the copyright laws to pick up someone’s photo and rerun it, why wouldn’t it be copyright infringement to pick up a daily comic strip and run that daily without permission, too?

#12 Jeremy Nell
February/18/2011
@ 9:32 am

Drew, why are they requesting to reveal his personal details? Name and shame, perhaps? If so, then why endanger the blogger?

#13 Drew Beran
February/18/2011
@ 9:55 am

Jeremy, I’m not sure you’re reading that right. Or maybe I’m not. I’m not reading “reveal his name to the public so he can be stoned by a mob.” I’m seeing a cease and desist sent to WordPress to take down the blog and a request for the blogger’s personal info so Batiuk’s lawyers can sue him.

Anyone else seeing something different?

#14 Drew Beran
February/18/2011
@ 9:58 am

Also, and I’m not trying to be snide here, but I made a faulty comparison earlier between Ed Power and Tom Batiuk. Ed giving away My Cage for free isn’t the same as Batiuk ‘defending’ (call it what you will) a very profitable revenue stream and the reputation of a strip whose audience is global. I don’t mean this as an insult to Ed, but My Cage had a much smaller clientele than Funky Winkerbean, which changes the whole dynamic. Ed allowing someone to post My Cage for free would be no-cost publicity for a relatively unknown strip. Tom allowing people to run Funky Winkerbean for free undermines all of those newspaper and online clients who are contractually obligated to pay to run his strip. If/when those clients find out about the existence of a site that a) runs the strip daily without paying a dime, b) has a significant following, and c) exists solely to point out what a horrible comic Funky Winkerbean is, well…that might cause a few of those clients to wonder why they’re paying so much to carry a strip a lot of people hate, right? That’s an issue Ed never had to deal with when he was creating My Cage, or if he did, it was on a much smaller scale.

No offense intended to Ed or anyone else – I don’t know if it’s possible to make that point without sounding like a jerk. I really like what I’ve read of My Cage so far and I think it’s a shame that it’s no longer running.

TL;DR: At some point the scale tips, and giving away your comic for free goes from “getting your name out there” to loss of profits and potentially damaging your relationship with paying clients.

#15 Brian Fies
February/18/2011
@ 11:16 am

I am not a lawyer, but think Josh, Andrew and Mike got it right. Reproducing excerpts of a work for the purpose of criticism is Fair Use; reproducing the entire thing every day–whether to mock it or exalt it–is a pretty clear copyright violation.

I have a hard time seeing Batiuk and his syndicate as the bad guys. They have to protect their copyright or risk losing it. If they let this guy slide, the next 50 guys have a precedent to cite. This comes up from time to time when Disney or the Schulz people force a kindergarten somewhere to paint over their Mickey Mouse or Snoopy murals and come off as the big bad guys. That said, I am also a believer in selective blindness (Sgt. Schultz: “I see noth-ING!”) and, personally, would leave the kindergarteners alone. But that’s me, and the Funky blogger’s not a kindergartener.

Bottom line for me is that it’s the creator’s call. Except for recognized Fair Use, which it’s obvious at least to me the Funky blogs violated, Batiuk & Co. have the legal–and more importantly moral–right to say how their work is shown.

I realize this opinion puts me out of step with the times.

#16 John Read
February/18/2011
@ 12:28 pm

Brian, you’re not “out of step” at all. And did you notice that no one who makes their living with a syndicated comic has commented against Batiuk’s action?

#17 Jeremy Nell
February/18/2011
@ 4:04 pm

Lots of “ifs” and “buts” flying around.

Funky Winkerbean’s syndication, income stream, or even PR has obviously been damaged, and there is clearly loads of supporting evidence to help the legal cause of shutting down non-profit blogs.

Right?

#18 Jeremy Nell
February/18/2011
@ 4:12 pm

BTW, this comment is priceless: http://sonofstuckfunky.com/2011/02/17/sosf-in-the-news/#comment-4330

#19 Drew Beran
February/21/2011
@ 10:54 am

Jeremy, you need more experience in copyright law. No shame in it, you just don’t know enough yet. But you should look into it and get familiar with the subject before you attempt to argue it again.

You’ve posted four comments on this thread. The first two came from a failure in reading comprehension, which I hope by now has been cleared up for you. The third is also in error – none of the hypotheticals you mentioned has to be met in order to justify the blog’s forced shutdown. Brian summed it up very well in the post above yours. And your fourth comment links to the blogger’s new blog, adding no value to the thread. It’s clear which side you’re on, but you haven’t made a single valid point.

#20 Jeremy Billadeau
February/26/2011
@ 12:23 pm

If we rented out some land we owned. We’d expect our renters to take care of it. We wouldn’t want them to mess it all up, set fire to it, would we? Of course not, we’d have those renters tossed in whatever way we needed to… In Toms case, there’s no ‘renter’ and he created the ‘land’ with his own hands, how much more should he be afforded to do with it as he pleases, despite any conjecture we may throw at this occurrence? Regardless of the sites context towards anything concerning Tom or his creation, it’s his property to do with as he pleases, especially seeing how he’s not receiving compensation for any statutes of it’s use in this instance. Even still, if the site paid for it’s use, it’s still only being rented out and Tom still has the last say as far as he would have agreed to possess it. That’s the copyright law. You’re the landlord. Also, if the top guys aren’t going to protect their rights for their properties, what chance will the little guys have to protect their own stuff when someone tries to run away with one of their creative properties? So in that sense, Tom is a gatekeeper in this instance, and I say more power to him…

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