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On the matter of copying the exodus billboard:

Lawerence F. Pulgram's fair use and transformative argument failed in his defense of Napster, it failed to hold water here too. The copying of exodus photo and publication of a slightly modified version is no fair use, but willful trademark and copyright infringement.

The exodus photo was an audiovisual work and was not a literal work, it was a combination of graphics and textual rendering of words in particular font and color. In the original photo, the domain name coupled with the background logo designated the authorship of this work.

I. Copyright infringment

The infringer copied the original work and made changes, such changes were merely partial replacement, not transformation. The infringer simply replaced part of the photo with his work. In the modified copy, a substantial amount of the original was kept intact. Mr. Pulgram admitted that there was about 50% of the image that was kept. This is exact copying of half of the work. No transformative defense can be applied to 50% of the work.

By copying the photo but changing the domain name, the infringer made a false designation of authorship of the original work. This is fundamentally different from the "2 Live Crew" case where explicitly credit was given to the holder of "Pretty Woman" copyright.

Lawrence F. Pulgram's creativity (at least in the way he understood the word creativity) analysis shows a total lack of understanding of copyright basics. Copyright protects the authorship of original work fixed on tangile medium. A blind person can shoot a photo in blind and copyright the photo, because it's original work -- work didn't exist before. Copyright does not protect ideas and has nothing to do with ideas and creavitity. In fact, you can borrow the same ideas (unless it's patented) but express it in a different way. The infringer's changing of the words was perfectly legal, the infringing activity was his copying of the exodus photo and imprint his words onto it, and subsequent change of attribution of authorship to another domain.

The First Amendment argument was invalid. The infinger can say whatever he wants, express whatever he wants, he can legall do so without infringing people's copyright.

II. Trademark infringement

By keeping the exodus trademark in the background, the infringer created a false impression that the modified photo was endorsed by exodus. Anyone who did not know who exodus is would inevitably associate the modified photo with the logo and conclude that exodus is a gay organization. Given the publicity of the modified photo, the exodus logo trademark and trade dress was greatly damaged.

III. Willful trademark and copyright infringement go hand in hand in this case

In the parody cases, there were no trademark infringement. This case is thus totally different.

IV. The infringer may be liable for statutory damages for both willful trademark and copyright infringement

treble damages, attorney fees, statutory damages....

Being gay doesn't mean someone the right to violate federal laws on intellectual property.

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