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Fighting words to FunnyJunk lawyer: The Oatmeal will not cave

Last week we saw Matthew Inman’s response to the legal threat of defamation by FunnyJunk attorney Charles Carreon by mocking his demand for $20,000 and starting a fundraising effort – not to pay the legal fees but to instead raise $20,000 for the National Wildlife Federation and the American Cancer Society. To date, Matthew has raised $180,000 with a week left in the campaign.

This week we have the legal response from Matthew’s lawyer that rebuffs FunnyJunk’s claims and suggests that if FunnyJunk sues The Oatmeal that a counter suit would be expected stating, “The Oatmeal will explore the possibility of asserting claims for copyright infringement against FunnyJunk.”

Here are some of the cherry sections:

There are two simple reasons why FunnyJunk’s claims under the Lanham Act are untenable. First, the Blog Post is not commercial advertising or promotion. See New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1111 (C.D. Cal. 2004); Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1017 (9th Cir. 2004).

Rather, the Blog Post expresses The Oatmeal’s legitimate concerns about vast quantities of his content being misappropriated, and the frustration and difficulty in policing online copyright infringement. Second, the parties are not in competition with each other. FunnyJunk runs a site that reproduces user generated content. The Oatmeal, on the other hand, publishes his own, originally produced content. Rather than forming the basis of a claim under the Lanham Act, The Oatmeal’s Blog Post is a commentary on copyright issues and FunnyJunk’s business model, and is entitled to “full First Amendment protection.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 903 (9th Cir. 2002). Given The Oatmeal’s status as an artist and a commentator, courts will be particularly sensitive to First Amendment concerns in this context.

As your client should know, the internet does not like censorship, and does not react kindly to it. Bringing a lawsuit against The Oatmeal is ill advised. Not only are FunnyJunk’s claims meritless, FunnyJunk will surely lose in the court of public opinion and cause itself reputational harm. We are also deeply skeptical that a nameless, faceless, business that hosts third party content will be able to demonstrate much if anything by way of damages as a result of The Oatmeal’s allegedly defamatory statements. At the end of the day, a lawsuit against The Oatmeal in this situation is just a really bad idea.

The Oatmeal wrote a blog post complaining about his content being made available onFunnyJunk. There is no dispute that large quantities of his content were indeed available via FunnyJunk. To the extent FunnyJunk wishes to make clear that it has removed The Oatmeal’s content and that it should not be held responsible for the availability of this content on its site, it has an easy avenue to do so: FunnyJunk can publish a statement or a blog post to this effect.This would be the appropriate and First Amendment-friendly course of action for a website (that presumably shares the free speech concerns of the internet at large). In any event,FunnyJunk’s claims are meritless, and The Oatmeal will prevail in any litigation involving FunnyJunk’s threatened claims.To be clear, The Oatmeal will not cave in to FunnyJunk’s attempts to censor him through legal threats and bullying. He has posted a response separately.

You can read the full response here:

FunnyJunk — The Oatmeal Response

For more background on this case, visit:
Lawyer Demands the Oatmeal Pay Him $20K Not to Sue Him and
Funnyjunk Lawyer Shocked by the Oatmeal Response

Community Comments

#1 Darrin Bell
June/18/2012
@ 8:11 am

Once he wins, I hope he sues FunnyJunk for recovery of his legal fees.

#2 Stacy Curtis
June/18/2012
@ 9:02 am

i’m not going to comment on this, because I don’t want to get sued by Unfunny Junk.

#3 Brian Fies
June/18/2012
@ 9:30 am

While I think there’s a funny side to this, watching a clearly-in-the-right Inman poking a humorless and clueless lawyer with a stick, the sad and disturbing aspect is that this idiot and his client forced Inman to hire a lawyer, draft a response, and possibly appear in court. Not everyone could afford that; I have no idea if Inman can afford that (although I expect this will end up being nothing but good for him).

So you steal my stuff, I call you out, you try to extort $20,000 from me in return (after, again, STEALING MY STUFF!), and I’m the one who has to hire an attorney?! That ain’t right.

Yeah, I’m with Darrin. I hope he wins legal fees plus astronomical pain-in-the-ass fees. Carreon and FunnyJunk deserve a message-sending slapdown.

#4 Kevin Moore
June/18/2012
@ 9:34 am

Lately I have been on a mission to get political organizations on Facebook to provide linkbacks to the artists who created the cartoons they post to their walls. Just to give those artists credit for work that inspires hundreds of shares, likes, comments and web traffic.

So I think it is great that Inman is fighting back hard against sites that wholesale rip cartoonists off – first with humor, then with forceful legal backup. Good on him!

#5 Steve Skelton
June/18/2012
@ 10:17 am

Agreed, Brian. Now the task is to get this story into the mainstream media and build yet more of an audience for The Oatmeal. In this world of viral media, these things can be a blessing in disguise.

#6 Dan Olson
June/18/2012
@ 10:22 am

Techdirt.com has been covering this for about a week now (7 articles so far). The biggest problem seems to be the lawyer Funnyjunk hired otherwise it would have died out long ago.

#7 Stephen Beals
June/18/2012
@ 12:57 pm

Let this be a lesson to all the kids out there. Why be a gangsta when you can be a lawyer?

#8 Gerry Mooney
June/19/2012
@ 8:10 am

Someone should tell that carrion Carreon not to carry on!

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