I'm not nearly ready to give up on Coach Nutt, but I'm ready to give up on his legal team and marketing guru. Why is it that universities claim to be bastions of free speech and debate – except as to anything that hurts them financially or may possibly bring bad publicity? The University of Arkansas has absolutely no sense of humor. At least to this ridiculous t-shirt incident – it seems to have no commitment to freedom of speech as well. For those of you who don't want to read the whole article, hear is a quick synopsis:
The front of the shirt features a drawing of Nutt in headphones, “Moral National Championship” written above Nutt’s image
Matt Shanklin, the UA marketing director, and Scott Varady, the school’s lawyer, both say that the university was only protecting its license of Nutt’s image in ordering Larru to turn in the 50 or so shirts he’d had printed in Fort Smith.
Varady says the printer of the shirts agreed immediately to destroy the print work. After a week of wrangling over the matter and threatened with the loss of his football season tickets, Larru turned in the remaining shirts before the Hogs’ game with Alabama. But he would not sign a 17-page release that Varady drew up that, among other things, said he could not speak to the media about the settlement and could not produce any more shirts without UA’s consent.
Let me get this straight – a lawyer who I assume, perhaps incorrectly, is being at least partially paid for by my tax dollars, prepared a 17 page release that said a ticket-holding Razorbacktmtm fan could not make anymore t-shirts critical of Houston NuttTMt Satan himself to show up, contract in hand, at any moment.
I assume anyone who represents the University of Arkansas would have easy access to (1) the law library, (2) law professors for consultation; and (3) almost any lawyer in the state to at least review a possibly outrageous legal misstep. Perhaps I'm wrong. I'm certainly no copyright expert but a quick review of the law of copyright infringement, fair use, parody and common sense is useful on this issue.
Its hard to write this blog sometimes without getting bogged down in dry legal argument – so I'll just compare this situation with some other famous cases.
The fair use defense "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." To be sure, “Fair Use
” has no generally applicable definition. So, much like pornography, a judge just has to know it when he sees it. In the 1976 Copyright Act,
Congress laid down several factors to be considered and weighed by the courts in determining if a fair use defense exists in a given case. The fourth factor here is the important one, the effect of the accused use of copyrighted material on the potential market for or value of the copyrighted work.
Should we be paying a government salaried attorney to claim that these fifty t-shirts somehow diminished the “market value” for Houston Nutttm's likeness? A cynic might say, how can you diminish something worth zero? I am not a cynic, and I Nutttm'st support anything that unfairly damaged Houstontm, but these shirts cannot possibly do anything of the sort. Maybe the taxpayers should be gettinHoustontmd on whatever amount and time it took the U of A legal staff to come up with that argument. It's sad, pathetic even, that a government employed attorney is allowed to pursue a government funded lawsuit to intimidate someone who is (1) expressing legitimate criticism of his favorite football team (2) making no money through such criticism, and who presumably (3) would like to see the football team, and presumably the University succeed in the future by a change of coaches. The University of Arkansas should not be allowed to engage in such strong-arm and ethically questionable tactics.
The U of A legal team defends its actions by claiming they are forced to do so by a contract with Collegic Licensing company. They claim “we would have done so if it had just been one shirt.” Again, I call bullsh@t on this reprehensible position. I'm curious if they will share that contract with the public – I'd like to see a contract that says a U of A lawyer has to squelch free speech – and has to demand that any t-shirt that criticizes or even supports Coach Nutttm must be set upon the same way vultures swarm in on roadkill. Just like I'm no copyright expert, I'm no contract expert but I know that any contract can be made void if it is against public policy. I say any contract that requires a government lawyer to threaten legal action in response to legitimate public protest of a head coach's performance is void and outrageous to boot. Actions like these give all lawyers a bad name. Marketers already have a bad name of course, hence, they are marketers. To paraphrase the last line in a famous fair use case
, the U of A legal staff and marketing department just need to “chill."
I've been working on a logo for my little blog here, and for a variety of reasons, I did not want it to look anything like our revered, and more importantly copyrighted Razorbackstm As I began this post -- I don't think Nutttm needs to go. But, I am feeling the the need to make a shirt that supports our beleagered coach. Who thinks that the marketing/ legal team would keep their word to make even a supporter "cease and desist" knowing that - I know more than they do about freedom of speech ( which doesn't take much, promise), I have obviously have too much time on my hands, and best of all -- I have this wonderful public forum to expose the petty acts of small minded bureaucrats? I will need some help with a logo --- maybe This Nutt Won't Bust? Save the Nutt? Free Houston? Surely we can do better than those.
"Nutty for Nutt"