Fair Use as a Blogger Who Reviews, Critiques, and Educates

Take your ball and go home? Photo: Carl T. Feagans

Receiving a DMCA “take-down” notification can be un-nerving for those not prepared or experienced with them, so I thought I’d share a recent attempt and my thoughts on it for other bloggers.

I’ve actually received several of these over the years, but this is the first that came directly from an individual rather than the individual’s attorney(s). As a blogger who critiques the ideas, notions, and intellectual works of pseudoarchaeology, I’m not unfamiliar with the ruffled feathers of those being criticized. Understandably, they don’t like their beliefs challenged, particularly not in public (or as the very first review listed on their book’s Amazon page!).

But only a few times have I ever received a “take-down” notification. Today is one of those days. So let me tell you about it.

If you aren’t aware, Jovan Hutton Pulitzer, who variously goes by the self-aggrandizing title, “Treasure Commander,” “the Commander,” etc., once had a claim about a decorative sword of Roman style (sold by companies like Design Toscano on Amazon). Specifically that it was a genuine Roman artifact, suggesting that Romans traveled to North America during the Classic period, etc., etc….

I’ve written about it. Years ago. Hell, another month or two and I might have forgotten JHP even existed!

If not for the poorly written “take-down” notification he sent today. Here it is:

“notice of take down” from Jovan Hutton Pulitzer to me. Sent 10/21/2019.

Very scary language, right? And it is if you aren’t aware of how copyright, trademark, and Fair Use all apply with regard to blogging and, essentially, journalistic freedom.

Specifically, Pulitzer says my, “use of copyright and trademark of Jovan Hutton Pulitzer, along with content tagging, meta tagging and content creation is in violation of the individual Jovan Hutton Pulitzer and/or his business entities and concerns. Specifically: Use of name/image Jovan Hutton Pulitzer according to- IC 041. US 100 101 107.”

So what is all the letters and numbers at the end of his claim of violation? That’s the section of “International Trademark Classes” he feels are applicable. Lets see just how applicable they are. There are two potential areas of violation according to Pulitzer in the opening paragraphs.

Copyright?

If I were creating content and attaching his name to it with an intent to obtain prestige or gain by implying the content was his; that I am he; or that he endorses my content, I would certainly be in violation. It would also be a violation if I used content he created and passed it off as my own.

However, if it was used in content “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright” (17 USC §?107), which it is, I would be well within the protection of Fair Use. So copyright infringement is out. It’s important to note that I can reproduce his content on my site as long as I’m doing so in the confines stipulated above.

This includes images, text, sounds, video, music, etc. Ideally these would be snippets or portions and not the entire works, or perhaps thumbnails or lower quality images (with attribution) not grand works of art. However, most images on the internet already start off compressed and of low quality, so this is not a difficult bar to meet. But the “bars” for what’s considered too much is grey. The rule of thumb is use just what’s necessary to convey the thought or idea in a criticism, news reporting, scholarship, etc.

So copyright is out. I’m not violating that according to 17 USC §?107.

Trademark

There seems to be implied a ludicrous notion that Pulitzer has trademarked his own name such that no one could ever discuss him publicly, in a way he disapproves. Not surprisingly, the laws regarding trademark violation are also set up with provisions for Fair Use. While it’s very similar to copyright in many regards, we’ll need to look at a different set of Sections of a different Title of the United States Code. Specifically, 15 USC § Subchapter III – General Provisions. This link provides a starting point for someone interested in trademark law.

But essentially, the following are considered to be limits of trademark rights:

  1. Fair Use
  2. Nominative Fair Use
  3. Parody Use
  4. Non-Commercial Use
  5. Product Comparison and News Reporting
  6. Geographic Limitations
  7. Non-Competing or Non-Confusing Use

Applicable to the pages Jovan Hutton Pulitzer claims are in violation of his copyright/trademark are numbers 1, 2, 4, and 5.

The pages where I mention Pulitzer are:

In these pages I’m writing about his involvement and claims surrounding an alleged Roman sword (which turned out to be a modern decorative piece). Claims which turned out to be either fake, fraudulent, or just fantastic based on science and reason (which of these three perhaps only Hutton knows for sure. Or maybe he doesn’t).

There was no other way to accurately describe the events and the claims without mentioning his name as the claims were his (Fair Use/Nominative Fair Use). I wrote of this on a blog venue that I make no net income from (non-commercial use). But, more importantly, I was reporting the facts of a story that is both interesting and important. Interesting because of it’s bold, fantastic nature; important because it exposes the pseudoarchaeological nature–the bullshit if you will–behind wack-a-doodle claims made in earnest by a person who expects to be taken seriously. The sort of claims that threaten genuine science and reason. In short, these articles compare and contrast pseudoscience with genuine science while delivering factual information (Product Comparison and News Reporting).

So what now?

My attorney said just see what he does next. I’m pretty sure my ISP (Ionos) understands the concept of Fair Use. The previous “cease and desist” or “take down” notifications they’ve received were from actual attorneys. This looks like a copy/paste job by Pulitzer that he cc’d to an attorney.

Because Pulitzer mentions the Digital Millennium Copyright Act (DMCA) in his C&D/take down, my ISP falls under Safe Harbor immunity, so they wouldn’t be liable nor are they compelled to remove content as he states in his silly letter. But, if my ISP acts on his C&D and disables my site, I would have the option to use section 512(f) of the DMCA to seek compensation for each day I’m down. Not from Ionos (a hosting company I totally recommend, by the way), but from Pulitzer. That’s where my own attorney comes in.

But all this is actually an irrelevant point. Because I think Pulitzer secretly or subconsciously wants me to succeed. He authorized each of the pages listed himself. No take-backs, Hutt!

“The authorized use of the trademark and copyright can be found at the following URL:” -Doh!
About Carl Feagans 363 Articles
Professional archaeologist that currently works for the United States Forest Service at the Land Between the Lakes Recreation Area in Kentucky and Tennessee. I'm also a 12-year veteran of the U.S. Army and spent another 10 years doing adventure programming with at-risk teens before earning my master's degree at the University of Texas at Arlington.

20 Comments

  1. After a while it becomes hard to tell these clowns apart. I feel confident in identifying him as the batshit crazy Roman sword guy. I’m just not sure if he is part of that special band of pseudoscientists who are batshit crazy and make a hobby out of threatening people with lawsuits.

  2. He is NOT welcomed in Nova Scotia anymore. Keep your batshit crazy stories and Roman swords out of NS Jovan! Or else we Nova Scotian will chase you out like the fool you are! And you know we mean it!

  3. Now is when gleaner shows up and says we can’t criticize Blovan because we don’t have a history degree from Charleston University and because of Clovis first and because Carl Sagan smoked pot and because people would learn they are wrong if they read the bible.

  4. Peter, how could you forget the biggest flop in the history of computers, the cuecat? Lol.

    “The CueCat was invented by J. Jovan Philyaw, who changed his name to J. Hutton Pulitzer. Belo Corporation, parent company of the Dallas Morning News and owner of many TV stations, invested US$37.5 million in Digital Convergence, Radio Shack $30 million, Young & Rubicam $28 million and Coca-Cola $10 million. The total amount invested was $185 million.”

    https://en.wikipedia.org/wiki/CueCat

  5. Oral Robert on Carl Sagan’s alleged drug use: I think dreaming up the idea to place a plaque on the side of the Pioneer 10 probe is all the proof anyone needs that ole Carl wasn’t wrapped too tight:

    “…The Pioneer 10 trajectory is expected to take it in the general direction of the star Aldebaran, currently located at a distance of about 68 light years. If Aldebaran had zero relative velocity, it would require more than two million years for the spacecraft to reach it. But well before that, in about 90,000 years, Pioneer 10 will pass about 0.23 pc from the late K-type star HIP 117795….”.

    But seriously folks, assuming it could even make it, 90,000 to 2 million years before any “thing” might find it and decode the message? Right. And to think you fellas call Graham Hancock a “kook”, LOL….

  6. James Ford on those who are “batshit crazy”: Through some strange breach in the space-time continuum, we are actually in agreement. When *you* call someone else “batshit crazy”, there can be no further debate….:).

  7. Yeah, I’m a kook just like Graham Hancock. Yeah, that’s the ticket.

    Speaking of batshit crazy I am pleased to make your acquaintance Monsieur/Madame Gleaner.

  8. Hey there Carl: I’m thinking maybe you can address this *gem*?

    In his 1980 book Cosmos, Carl Sagan shows this picture in the chapter Blues for a Red Planet with the image caption “The Pyramids of Elysium”. In that paragraph he wrote about a large rover mission which would be of high public interest as live TV-picture would be send to Earth when the rover visits these pyramids. In a footnoote on that page he wrote: “…The largest Mars Pyramids have a base width of 3km and a height of 1km, so they are much larger than the Pyramids of Sumer, Egypt and Mexico. With the ancient eroded shape, they could be small hills, sandblasted for centuries, but they need to be viewed from nearby….”.

    Did you *really* think these structure needed to be viewed from nearby to conclude they couldn’t possibly be artificial? Mmmmmm???

  9. A picture and a sentence in a footnote saying it would be nice to get a closer look at something vs. Hancock making a career out of writing a mountain of BS that has consistently been proven to be false. Excellent comparison. Give us just one more of these gems of wisdom and we can call it a wrap on another exercise in Gleanerisms. I think that if you dig deep enough you can find an instance or two where Carl accidentally dialed a wrong number, thus demonstrating that Graham Hancock can’t be criticized.

  10. Carl’s Cousin: No one is saying that Hancock can’t be criticized, so I don’t know where you’re getting that from. I’m only suggesting one be fair about it; if Hancock can be called a crank looking for a Lost Civilization on the Earth, surely Sagan is/was in the same league looking for one on Mars. The real point is this: you, or a sacred cow like Sagan, cannot no be criticized, no matter what….

  11. Carl’s Cousin states: “…A picture and a sentence in a footnote saying it would be nice to get a closer look at something [possible artificial pyramids on Mars]…”.

    What evidence, in your mind, would suggest there had once been an alien species on Mars? And one that would choose to build, of all possible structures, pyramids? Let me go ahead and answer for you; somewhere between Zero and Zero. So what was Carl thinking, and where was the evidence? If you known anything at all about evolution, and one would assume Carl did, the very idea that any structures on Mars looked *anything* like it’s human counterparts on Earth, should have been the surest, safest, evidence they could not have been artificial. The chance that any home grown Martian life form would look, or think, like an Earthling can be be categorically stated to have a probability so low as to approach ZERO. That’s right, ZERO. So maybe Carl’s real or alleged drug use was far more severe than has been alleged….

  12. A guy who was open to the possibility of life on other planets makes a brief comment buried in footnotes. Why he mmust have been strung out on heroin. He should have done like Hancock and devote an entire chapter in a book to something like that. Then scream conspiracy by the scientific community when they turn out to be natural features. What a loser.

  13. Captain Obvious: Carl Sagan was well trained and well versed in a number of areas related to life on other planets, was he not? But Mars, so far as he knew then, and we know much more about it now, has always been a “dead planet”; he must’ve known this. Even if Mars once had a considerable amount of water, there’s absolutely no evidence it ever evolved a single, simple cell, much less an advanced life form that could build a pyramid. I think if the truth was known, his comments about the structures on Mars was just a way to drum up support for the space program. I don’t know if you’re aware of it, but I think Carl was on the Viking Mars mission team, and he had a hand in deciding what equipment the probe was going to carry. Against better advice, he argued for and got a high-speed camera included on board. Do you know why? Well, you guessed it; in case an advanced life form was walking by the Viking lander, the camera would be able to get a pic of it. Crazy? Yes! Carl’s belief in ET was a type of religion to him….

  14. Sounds like you have been “SLAPPed” by a strategic lawsuit against public participation (SLAPP)in the form of a DMCA “take-down” notification.

  15. wow hes really trying tohite wash himself off the internet, i got the same for my youtube vids, but they are still up

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