Thanks to a maelstrom of travel, clients’ litigations (one settled, others are still in progress) and a bit of illness, we’ve been relatively quiet here for the past few weeks - but cases, legislation and administrative actions are heating up!
Recently, the 11th Circuit (that’s Florida and Georgia) ruled that content hosted on a site that also had advertisements was not commercial speech. This is a huge deal for YouTubers, fanartists, fanfic writers and other follow-on creators, because it means that even if your content is hosted on a site that has ads - like tumblr, fanfiction.net, YouTube, fictionalley, DeviantArt, LiveJournal, or BandCamp - as long as the content you are sharing is not an advertisement itself, it is not commercial speech, and Lanham Act claims of trademark infringement cannot succeed on that ground.
It’s been settled for a few years that product reviews are not commercial speech, even when they include comparisons of different companies’ products, so this provides additional support to anyone who mentions another’s products, whether it’s for informational purposes or, arguably, even for creative purposes.
Professor Rebecca Tushnet highlighted one of the best parts, noting that website subscriptions are standard features of online magazines and newspapers - and we note that they are also standard features of Patreons and YouTube Red
[N]either the placement of the articles next to revenue-generating advertising nor the ability of a reader to pay for a website subscription would be sufficient in this case to show a liability-causing economic motivation for Dr. Novella’s informative articles. Even if Dr. Novella receives some profit for his quasi- journalistic endeavors as a scientific skeptic, the articles themselves, which never propose a commercial transaction, are not commercial speech simply because extraneous advertisements and links for memberships may generate revenue.
One significant note: the case concerns the Lanham Act, which deals entirely with trademarks, not copyrights. However, the court’s ruling on what is and is not commercial can apply by analogy to other kinds of commercial usage disputes.
We remember 2001 and 2002, when LiveJournal and Fanfiction.net started adding ads, and there was a lot of concern within the fanart and fanfic communities on those sites - and elsewhere - about whether the presence of those ads made those spaces commercial.
When in 2002 Warner Bros said they would not consider FictionAlley “commercial” if we added links to their products on Amazon and the WB store to bring in some revenue to cover hosting fees, we wanted that commitment via email - and we were thrilled to have a definite statement on the matter, even if it was limited just to official Harry Potter products & movie tickets.
It’s been well over fifteen years that this issue hasn’t been completely settled as a matter of law; this case gives reassurance that subscriptions and ads don’t turn all the content on a site into commercial speech unless other elements of the Bolger test are met.
You can read the case here.
