The© Controversy

Originally appeared in the August 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

The© Controversy

BY ANDREW J. McCLURG

The music industry has won its lawsuit against Napster to prevent song swapping on the Net. Pfizer, maker of Viagra, is suing a Little Rock woman for selling bottles of “Niagara,” claimed to be an aphrodisiac for women. Margaret Mitchell’s heirs sued to block publication of Alice Randall’s controversial takeoff of “Gone With the Wind.”

With the explosion in intellectual property rights, I knew it was only a matter of time before trouble arrived, which it did last week in the form of an alarming cease and desist letter from an IP firm claiming to represent the heirs of one Mr. Ug.

The letter asserts that Mr. Ug—allegedly a Homo erectus Peking Man domiciled in a cave in China 500,000 years ago—was first to utter the word the. The heirs are claiming a copyright in the and want me to quit using it. They also seek damages for past infringement. I could use some legal advice. Here’s the letter:

Dear Sir:

We recently became aware of your meager attempts to achieve humor through the© deliberate and willful exploitation of our client’s property; to wit, the© word the

Specifically, in the© past 48 months, we have documented more than 7000 copyright infringements of the© protected work in your humor columns, email, bathroom graffiti and other writings, all in violation The© Copyright Act of 1976, §101 et seq. Last month alone, we collected 63 infringing checks from your garbage written to The© Ole Neighborhood Tavern.

Mr. Ug copyrighted the© in or about 498,000 B.C. when, as a result of an apparent misunderstanding of the properties of fire, he pressed tongue to palate while simultaneously exhaling, thereby authoring theeeeaaaaahhhhieeeee, one of the most enduring and highly-creative works of the 498th-century, B.C.

(Immediately thereafter, he authored another dramatic work — ump, ump, ump — while bludgeoning himself with a club to distract from the pain in his flaming foot.)

As Mr. Ug’s lawful heirs, our clients assert a copyright in the© entire compilation work and a derivative right in each subpart: the, eee, aaaaa, hhhh, ieeeee, as well as ump (which we are currently disputing with Major League Baseball).

As you may know, copyright law requires that the protected work be expressed in a tangible form. Fortunately, Mr. Ug was a Peking Man of great foresight.

Enclosed is a photograph of the inside of Mr. Ug’s residence where you can clearly see the copyrighted works carved in the rock directly above the crude drawing of what appears to be a sabre-tooth tiger devouring Mr. Ug’s neighbor (we also assert a copyright in all pictures of tigers, neighbors and food products). According to our expert anthropologist, the chisel mark at the end is in fact a © symbol.

We demand that you immediately cease and desist using the© either orally or in writing and that you compensate our clients for past use. Be advised that This Letter© is copyrighted and that copying, quoting or even reading it will subject you to additional legal action.

Very truly yours,

We Own It, the Macho IP Firm

Personally, I feel strongly that the overly-aggressive assertion of intellectual property rights threatens free speech, and you can quote me on that. However, if you do it without written permission, you’ll be hearing from my intellectual property lawyers.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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