Text-bullying

Here's a headline you won't read in today's Herald (and I know, because I've read it):

"Herald threatens legal action against blog artist"

Yes; APN, the company that runs (into the ground) the Herald, not to mention half the other newspapers in the country, has decided that Editing the Herald is a considerable threat to its media empire. Now, before I get too carried away, it's not directly to do with anything I've written - I don't believe we're in quite that sort of police state yet, although the Herald is doing all it can to bring that about. It's just to do with the banner that was, until today, at the top of my site, which ILLEGALLY used the Herald's masthead, a valuable piece of APN's intellectual property, made up of the following elements:

• the word 'The'
• the name of the country in which said newspaper is published
• the word 'Herald' a name by which no other newspaper has ever gone, not even the Sydney Morning Herald or the International Herald Tribune
• the quasi-Gothic script in which the title is written, and in which it has been written for many decades - that is, many decades before APN bought it
• the blue colour of the font, which I imagine was decided on at great cost by a hotshot team of consultants, and which I am certain multiplied sales manifold.

I know that this must have been confusing for many of you, who turned up at the website, tried to grab the screen and turn it like a page, tried looking for a crossword, spilled coffee on it, etc. And to you, I apologise. Also, the wealth that I have made from exploiting APN's trademark has bought me a flash house and a car with electric windows.*

But my favourite part about Mastheadgate is the courteous and polite way in which APN's legal team dealt with the issue. I've been told that the emails' threats about email confidentiality and 'NOT FOR PUBLICATION' are just a smokescreen that bullies people who don't know the law (98% of people), so here goes:

NOT FOR PUBLICATION [oops!]

Dear James,

I am legal counsel for APN New Zealand Ltd, publisher of The New Zealand Herald. APN New Zealand Ltd is one of the APN News & Media Ltd group of companies ("APN").

It has come to my attention that your website http://editingthe herald.blogspot.com features the stylised logo of the The New Zealand Herald (page shot below) as appears in my email signature below and which is an APN registered trademark. Your use of the trademark is trademark infringement.

You are required to remove the trademark immediately and to desist from any such infringement in the future.

Unless the trademark is removed from the website by 5pm tomorrow 6 May 2009 then APN will commence legal proceedings against you for trademark infringement and damages will be sought. All of APN's legal rights are reserved accordingly.

I would appreciate your acknowledgement of receipt of this email and confirmation that the requested actions will be undertaken.

Yours sincerely
James Elliott
Legal Counsel

To which I replied:

Dear James (and Lauri [someone at the Herald who doesn't exist on Google, was CCed into the original email and, in the fantasy situation in my head, is the one who told Mr Elliott what to do]),

I hereby acknowledge receipt of your legal threat. I will submit it immediately to my legal counsel to evaluate its merit. [They probably thought I was bluffing. It turned out I wasn't.]

Could you please point out exactly how my use is infringing the copyright, and why this has only become an issue now?

Kind regards,
James
http://editingtheherald.blogspot.com

I then received the following:

James,

Thank you for your email.

Attached is a copy of APN's trademark registration, Wilson & Horton Finance Pty Ltd being a company within the APN New & Media Ltd group of companies. Your use of the trademark in the same form that is registered is simply trademark infringement. I will leave it to your legal counsel to explain to you the difference between trademarks and copyright and the consequences of trademark infringement. [Thanks James! He did, and it was both entertaining and informative.]

Your infringing behaviour was only drawn to my attention this morning hence the action we have taken. Your acknowledgement that the APN trademark has been infringed for a period of time will be relevant to a damages claim if made. [Hang on - where did I say I acknowledged infringing the trademark for any length of time? Oh wait, I didn't. Nice bullying attempt though.]

You should be under no illusion as to the importance of this matter. Protection of its intellectual property in general and the trademarks that relate to its mastheads in particular is a serious and non-negotiable matter for APN. If the offending material is not removed by 5pm tomorrow then legal proceedings will be commenced without further notice to you.

Yours sincerely


James Elliott
Legal Counsel

(All emphasis my own.)

Anyway, I don't know if it has ever happened to any of my readers, but it's not particularly nice to be threatened with legal action, especially when a polite request would have worked. I lied before: I haven't actually made any money off the site. Threatening legal action against a not-for-profit blogger (although, as I understand, APN has been a not-for-profit organisation for a while as well - ouch!) who spends half his bloody time doing pro bono work for the Herald is the reason everyone loves corporations so much.

I realise it's not the world's biggest deal. I probably did violate their precious trademark, which I will soon reconstruct in a similar but non-identical font. And sure, apparently most, if not all, newspapers jealously protect their mastheads, although I am unsure of what the loss to the Herald in this case might have been. I've changed the title banner, and I'll pretty much go on as usual, although my legal advice says that I should probably remove my pretty photo banner in case I 'stole' any of them from APN. So the Herald has succeeded in making quite a few people's lives ever-so-slightly worse, while making a bunch of people significantly more bitter/less sentimental about it. Good job.

So yes. I'm sure there's some 'APN bullies blogger' angle on this story if anyone reading this works for, say, Fairfax, TVNZ or 3 News (or just another blog, I'm that starstruck). I will offer you the story free of charge! That's just the kind of person I am.

Finally, thanks to Scott Yorke, an intellectual property lawyer (!) from A J Park and EtH acolyte - not to mention author of the well-worth-reading Imperator Fish - for his legal advice. Hey look, I did have legal counsel after all! Thanks also to, erm, Mr F, a friend from a large law firm that occasionally does work for APN so probably shouldn't be named. No thanks to Mr James Elliott, who may just be doing his job but, like Roger Douglas, doesn't have to make it look like he's having so much fun while he's doing it.


*That is, windows made of electricity.