I recently received a comment on one of my videos on youtube.com. Here is the video and my reply...
"I don't mean go out and get violent; but at the same time you should never be nonviolent unless you run into some nonviolence. I'm nonviolent with those who are nonviolent with me. But when you drop that violence on me, then you've made me go insane, and I'm not responsible for what I do." – Malcolm X
"I believe in the brotherhood of man, all men, but I don't believe in brotherhood with anybody who doesn't want brotherhood with me. I believe in treating people right, but I'm not going to waste my time trying to treat somebody right who doesn't know how to return the treatment." – Malcolm X
Babette Cole,
I don’t normally go about beginning a letter with a quote, but for some reason I feel that, in this case at least, it is somewhat appropriate considering how you go about business and how I feel about it. I’ve spent the last week considering what it is you said to me, what it is you posted as a comment about my video on youtube.com, and the potential consequences of what I am about to write to you, and in the last week I have had a bit of hardening over what you have done. Had you come to me in the first place and said something to the tune of…
Hello, Jeff. This is Babette Cole and I recently became aware of the video with you reading my book at a comedy club. Needless to say, your rendition of my fine work is not exactly what I intended for it and your audience is not the one I was aiming for either. From my own perspective, I didn’t so much get the humor but I can see that others do and I can respect that while disagreeing with it. (It’s obvious you’re very intelligent.) Thing is, your version is really a bit naughty and way over the top for what I had in mind. I thought about it a good deal and I can see where you are coming from as well - it’s just that I would really rather you not use my book in your comedy performance. In my opinion, it diminishes the value of my book, my thoughts, and my intentions when you so blatantly make fun of it as you do. It also feels very much like a personal attack – whether you intended it to be or not. While I appreciate what you are doing, I am asking you to please remove the video of you reading my book from youtube.com (and any place else it may be residing) and stop reading it the way you do. Thank you a million times over for doing what I have asked of you.
Then there is a good chance I would have never thought twice about doing what you had asked me to do. You didn’t give me the chance to make a choice. You didn’t give me the chance to be the bigger man, the good guy. Nope, you chose to go straight for the guns and as such, my guns are also out, aimed to destroy, and absolutely NOT willing to back down. You did that, and you are going to have to live with and accept the consequences.
I’m actually a fan of your work and from your work I can glean that you are a left leaning person who believes in respect of others and treating each other well and the like, so it was with great astonishment that I read your note. You could have treated me like a human and I could have responded like a human, but this crap you pulled…
To be honest, a simple, “go fuck yourself, lady,” would have been sufficient and complete in most any way measurable, but I want you to know damn well why I feel like I do; so take this beat-down, this bitch-smacking if you will, and never bother me again…EVER!
And should you and your lawyers decide that you feel the urge, the need in fact, to pursue me and this ill-advised endeavor of yours any further after reading this letter, understand I will greatly and excitedly be looking forward to seeing the empty look on your faces when the jury also tells you to go fuck yourself.
Here’s your words…
“Stuthestoner.Please be very carefull how you misinterpret text for your own gain.You are infringing Copywright and Liable laws.My Publisher, Random House, and myself are taking legal advice .You would be advised to remove this video from the media forthwith.Babette Cole”
“This book is a best seller . It is designed to help children understand puberty.I would like everyone to know that the reader is deleiberatly misinterpreting the text for his own gain.I and my publisher are most offended and upset.Legal advice is being taken. The laughter is "canned" as a voice over.Liable and Copyright laws may be in question .Babette Cole”
There’s so much here…where to start?
Let’s start with what the law actually says…
Copyright – I’m pretty sure I don’t need to explain copyright to your lawyer. Not so sure about you, but your lawyer can catch you up. But let’s talk some deeper law here…
The United States signed onto the Berne Convention treaty in 1988 – 102 years after the original treaty was signed – with the exception that the United States does not recognize the moral clause (article 6). What that means is that the copyright holder of a work cannot “object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."
There’s that little thing we feel is rather important called the First Amendment and that is the reason the exception was made. (And don’t try trampling on the First Amendment because believe me when I tell you this, were it not for that thing, your book would have been burned long before it made it to the presses. A lot of your books actually…)
So how does that relate to our little disagreement here? Simple. Were I sitting before a room full of 3-5 year olds and reading your book, you wouldn’t have the slightest objection to it as that’s the intended audience. Instead, I am reading the book to grown adults in a room, secured from kids, who are laughing. You object not to the fact that I AM reading your book, but the manner in which I am reading it – thus the sentences “It is designed to help children understand puberty” and “I and my publisher are most offended and upset” – the former being an explanation of the latter. Simply put, you do NOT get to dictate my morals any more than I am dictating yours - which I am not.
And then there’s section 107 which provides for the fair use doctrine of copyright law and the express protection of parody among other uses. I found this to help explain…
“It has been a long-standing practice to poke fun at our cultural icons, symbols, public figures and celebrities. A parody exists when one imitates a serious piece of work, such as literature, music or artwork, for a humorous or satirical effect. Parody, as a method of criticism, has been a very popular means for authors, entertainers and advertisers to communicate a particular message or point of view to the public.
A parody, because it is a method of criticism, must inevitably make use of another creative work. This inherently creates a conflict between the creator of the work that is being parodied (as no one likes to be criticized, made fun of or ridiculed) and the creator of the parody. It is also highly unlikely that a copyright owner will grant permission or a license to a parodist to use their copyright protected work in creating a parody.”
That said, there are four factors used to determine fair use…
1. Purpose and character of use. Three things must be considered…
a. Has the new work been created for commercial or noncommercial purposes?
i. To date, I have not made a single penny performing the joke. The video you saw was me at an open mic and there is no commercial benefit to myself. That is an irrelevant issue though because the Supreme Court cases that have established precedent in this area have expressly stated that a work can indeed be produced for commercial purposes. To date, it is true I haven’t, but so what if I make money off it? Really, so what? You write those books and draw those pictures for your own gain. Is it really so wrong to do something for gain?
b. Does the user's use of the copyrighted work conform to the fair use purposes as set forth in Section 107; i.e., criticism, comment, scholarship, research, news reporting or teaching?
i. You’d better believe it does as it is obvious by your level of offense that I was criticizing your book.
c. What is the degree of transformation from the purpose or function of the copyrighted work as compared to the purpose or function of the new work? “This criterion analyzes the degree of transformation accomplished by the new work by determining whether the new work has a different purpose or different character than that of the original copyrighted work. For example, does a parody accomplish a transformative purpose by adding something entirely new to the copyrighted work or does the new work only supplant the original copyrighted work? Therefore, the crucial issue in ascertaining the transformative nature of the new work is whether the parody has altered the copyrighted work by adding new expression and meaning to the original copyrighted work.”
i. Again, using your own words, I can expressly state that I have certainly made it past this test. You claim I am “deleiberatly misinterpreting the text” “designed to help children understand puberty”. I took what was supposed to be a clean, family friendly text intended for an audience of 3-5 year olds and changed the substance of it with voice inflection techniques and a clever aside here and there. I did not change a single word. I read it as it is and let the adults I intended it for make up their own mind about it.
(It might please you to know though that I have had many people come to me that wanted to see the book for themselves because they believed there was no way someone REALLY made such a thing. There has also been many who have gone on to purchase their own copy, as I did, either to laugh at with their friends or show to their own children, or both. Either way, by completely changing the context of the original, as you freely admit I did, I have clearly made a completely new work of art out of yours – an original protected by the fair use doctrine.)
2. Nature of the copyrighted work
a. “The second fair use factor, the nature of the copyrighted work, recognizes that certain types of works are simply more deserving of copyright protection than other types of works and consequently establishes the scope of copyright protection that should be afforded the original copyrighted work. The scope of fair use is greater for an "informational work" that is designed to inform or educate, such as a work of facts, information, scholarship or news reporting, than it is for a more "creative work", such as a work of fiction, art or music, that is designed to provide entertainment. Another important consideration is whether the original copyrighted work has been published or remains unpublished as the courts have been far less willing to sanction as fair use the unauthorized taking of an unpublished work.”
i. Again, by your own admission, “It is designed to help children understand puberty” making it an “informational work” designed to inform or educate thus broadening the scope for fair use.
3. Amount and Substantiality of the Portion Used of the Copyrighted Work
a. What this takes into account is not just the quantity of material copied, but also it’s quality and importance in relation to the new work. When looking at this one, courts have to decide if more was taken than necessary to achieve the intended purpose for copying in the first place.
i. In my case here, I used the entire book, word for word and had to because I was specifically trying NOT to misrepresent what the pages said. I wanted to put my own slant, the way I saw it, out for people to interpret for themselves. It is NOT an indictment of your intention or yourself. It is an indictment of the outcome.
4. The Effect Upon the Potential Market or Value of the Copyrighted Work.
a. The fourth factor analyzes the extent of harm that is caused by the new work to the market or potential market for the original copyrighted work.
i. Again, by your own admission, your work is intended for children ONLY and mine is clearly not. Since I am not going to be sharing this with children, the potential for negative market impact specifically as you intended it, and as a reasonable person could also assume, does not exist. If anything, it could be fairly assumed that my performance has opened up your book to an entirely new audience who would not have otherwise been exposed to such a work and if anything, it has increased the current and potential market value of the original work.
Should I continue? Have you had enough yet?
That is copyright law and fair use and I think only a fool would challenge my use of your book as fair use. Oh, and then there’s that pesky First Amendment thing too. You are, by your own admission, a best selling author and a successful public figure which, by that whole pesky First Amendment thing, makes you and all your work fair game for ridicule under any circumstance. Again, I’m not making jokes about your intention; I’m quite sure your heart was noble in it’s intention. I am making great fun of the outcome though. You see puberty as having an urgent need to be explained to 3-5 year olds and I, like most folks, see this and wonder what sort of sick twisted bitch thinks a 3-5 year old needs to be seeing big, hairy dicks and jizz and periods and other stuff? And this is only this book…What about Mommy Laid an Egg which I’ve also read in the exact same manner? I’m 33 years old and spent over a decade in the navy and in all my travels all over the world, I’ve never once fucked in a space hopper, or in a clown suit, or floating on balloons. Would you like to explain how teaching 3-5 year olds about where babies come from requires a graphic depiction of deviant sexual practices that are unrealistic at best? Let’s face it, you drew pictures of folks fucking for 3 year olds. You also have the page that shows the “this goes in here” graphic just in case the other horrible pictures weren’t enough. A cartoon-ish drawing, a real photo – it matters not! Showing kids what fucking looks like is still showing kids what fucking looks like (not 15 year olds, but 3-5 year olds which is your stated, intended audience) and that is what I am making fun of. Face it, if you are going to pursue this BS in court, you are going to have to answer these questions and you are NOT going to look very good because a reasonable person sees things like I do.
Honestly, I could care less what you make and show to kids. Look at me; were I not fixed and had kids, do you really think they would grow up angels? But that does not change the facts from what they are. You did your thing and I did it different, for a different audience, with different purposes in mind.
If that’s still not enough for you, there is legal precedence that is applicable to this case. Perhaps a reading of Campbell v. Acuff-Rose Music, Inc. (1994) would be in order. In that case, the Supreme Court stated in no uncertain terms that a parody as a form of criticism or comment could be fair use of a copyrighted work. You can also read Leibovitz v. Paramount Pictures Corp. which is a similar case. Both establish legal precedent and clearly have me covered. You don’t have to like this, but unlike yourself, I did my homework prior to opening my big, stupid mouth.
And speaking of opening big, stupid mouths without a clue about what the heck one is talking about; and since I feel I’ve completely beat to death the fact that you will lose any copyright infringement arguments, let’s talk about libel laws or, as you call them, “liable”.
First, since you clearly do not understand what it is, we must begin by understanding the answer to the question – What actually IS libel?
I found this on the net to help you out…
“libelTo publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion.”
Now that begs the question – How does that relate to our little spat here? It’s very simple, really. (Since Libel and Slander are both basically the same thing – Defamation – only under different mediums, I am going to use the word Defamation, but please understand I am still talking directly about what you accuse me of…)
I did not mention you, Babette Cole, except for to say that you are the author of the book I was reading aloud. That much is absolutely true. Outside of that, there never was a mention of you. Nothing I did concerned you. Again, the joke is about the outcome, not the intent. You have no grounds to even insinuate that I have made a personal attack of any manner. Your charge of defamation simply wanes like a deflated hot air balloon when held up to scrutiny and the simple realities of the law.
On the other hand, and here’s where that bit about opening big, stupid mouths comes into play, you absolutely defamed me. Here’s your words again…
“You are infringing Copywright and Liable laws.” “Liable and Copyright laws may be in question .”
“I would like everyone to know that the reader is deleiberatly misinterpreting the text for his own gain.”
“The laughter is "canned" as a voice over.”
Line by line beginning with the first two together – Let’s say I accused you of breaking the law against prostitution and told a newspaper that I routinely used to watch you break the law against prostitution. Heck, let’s just say I mentioned to someone that I HEARD you were engaging in prostitution a long time ago because rumor is enough to trigger defamation torts. There are a ton of things insinuated when a person is accused of breaking the law against prostitution – Are you a whore? Do you fuck for money? Do you walk the street? Do you have out of wedlock children due to your loose morals? Do you have abortions every month? Do you have morals? Are you disease ridden? Are you on drugs? Etc. Etc. Etc…
Let’s say I accused you of breaking the law prohibiting drug use and told a newspaper that I’ve personally seen you violate the law against drug use. Heck, let’s just say I told someone I heard you used to whoop it up with anything and everything you could imbibe. Again, there are a ton of things insinuated with such an accusation…Do you have money troubles? Do you prostitute yourself for your next fix? Do you lie? Is your house a mess? Do you beat your children? Etc. Etc. Etc…
I could go on for days, but you should get the point by now. In both of these instances, you would have a clear-cut case of defamation. All of the things I imply with a simple and short accusation could, and indeed would, damage your reputation grievously and, I assume at least, could easily be proven to be false. When you tell me I am in violation of the law (which I’ve already proven quite handily I am not) and then when you tell others I may be in violation of the law because you are so mad you just can’t slow down and think about what you are doing, you do the very thing you accuse me of. By typing what you did, the way you did, you have violated my good name in the same manner I would if I were to state that I heard you used to prostitute yourself.
When you claim I am “deleiberatly misinterpreting the text” for my own gain, you imply that I am not being truthful and accurate. Actually, I read that book word for word and in the spots where I embellished a bit, I was very clear and upfront about the embellishment. Nothing was false and nothing was misinterpreted. The interpretation may not be what you intended, but it is what it is.
But the one that hurts the worst and seals the deal is when you claim that “the laughter is "canned" as a voice over.” This one is clearly over the edge. That is REAL laughter and there is not one single thing on any of my videos that is fake. And that is a rather egregious personal attack, said with malicious intent to hurt me, mislead MY fans, and frankly, I’m still a bit sick to my stomach over it. Not finding me funny is one thing, calling me a fake is another.
Taken in whole, you managed to take 108 words (five of them being your and my names) split into two separate messages, and used 41 of them to defame me while accusing me of the same. You have now questioned my taste, insulted my performance and most of all, called into question my integrity and the value of my word. You have damaged my reputation forever and from now on I am going to have to convince a booker that I am on the level. I am sick to my stomach over this and am suffering physically because of your malicious lies and deceitful ways. My integrity and the value of my word are about the only things in the world that mean a thing to me and it is no secret – I can bring people to testify to the importance of the value of my word going back for decades. You, with your unfounded and false allegations meant to call my integrity into question, have clearly defamed me.
Do you understand the law now? Ask your lawyer if you don’t.
And one more thing before I wrap this up…
Yes, this book IS a best seller and you ARE a best selling author. So is The Bible. All three of the folks running for President have best sellers and surely you will agree that at least one of them is an idiot who is full of it. James Dobson has many best sellers. Yes, the same James Dobson that founded Focus on the Family; the gay bashing, far right wing, hateful and prejudiced group that functions in the name of God and would absolutely condemn your books on the spot. Ann Coulter writes best sellers. So does Al Gore. Shit, let’s not be so silly as to forget that Mein Kampf by Adolf Hitler has outsold all of them, including yourself, combined. So what if your book is a best seller? It does not place it above reproach because it sells a bunch of copies.
So, here’s my conclusion…
There are people that think your book is the greatest thing ever and that it is a very valuable tool for teaching kids about puberty. There are also people that think your book is the most disgusting piece of pornographic bile ever conjured up in a person’s mind. Both of those groups are rather small. The very vast majority of people are a lot like myself in that they can see the practical goal you were aiming for, but also realize the practical reality of what it is, and what it is, is funny, particularly because it’s not supposed to be. It’s us folks that ridicule your outcome and laugh about it that twists your tits into a knot. Sorry, you don’t get to be the arbiter of taste. Like any other artist, you put your work out and people form their own opinions of it. Consider the Flight 93 memorial – they are fighting over the shape of the thing because some claim offense that it can be construed to look like a Muslim symbol. You think that artist that designed the thing meant any harm? Not any more than you meant. But like yourself, that artist has no say in the fact some folks are deeply hurt by his work.
And let's not forget that what has spurned my ire to the point that I am spending an entire week thinking about, and then two days writing this scurrilous and rage filled screed, is your own condemnation of MY work as an artist. Read the rest of the comments on the other videos. Some people love me. Others...not so much. It kills me deeply when someone dislikes my work, but that's the price we pay as artists. Their ability and freedom to openly criticize me without fear of reproach, the one you so joyfully employed to condemn MY work, is the very same expression in many ways as is my presentation of your book. So evil, in fact, was your revulsion to negative criticism, that you threatened me with an EXTREMELY expensive legal proceeding in a shameless game of Silence The Critic.... And let's not forget that you even stooped far beyond the level of fair and honest critique and plunged head-first into outright lies and defamation in your hideous and pathetic bid to win that game at all costs.
I would rather it not be like this between us. I don’t like being mean. I don’t even like being angry. Had you come to me kindly in the first place, I would have responded with kindness and none of this would have been necessary. Now, I understand that a lot of folks would, had you approached them kindly in the same situation as this, just laugh you off and not take you seriously. But you still serve yourself better by trying. You never gave me the chance to be the better man and that is why it has to be this way. It also doesn’t serve you well to be so wrong as you are. Had you been right, there is a good chance I would comply and just hate you for being such a fun killer. But you’re wrong, dead wrong.
I’m not sure if you’ve ever been in the shoes I’m in now or not, but it is not a fun place to be. It’s a daunting imposition I find myself up against. I am being threatened with very real litigation. I am being accused of very ugly things. I don’t really WANT to go to court and I don’t really WANT to hurt anyone’s feelings. But I am not the type to back down. You pressed me up to the wall. You threatened me and defamed me. And now you are going to have to forever pay for that. I will NOT remove the video from youtube.com just to make you go away. And if you somehow get youtube.com to pull it, I’ll make a thousand more. I’ll use my copy of your book with my “deleiberatly” misinterpreted text as much as I please, to whomever I please, for whatever gain personally I can get, and there’s not really one damn thing you can do about it. You want to swing the law at me, turkey, then you’d better do some homework and make sure you know what the fuck you are talking about because in this case, it’s going to miss and smack you in the back of that thick fucking head of yours.
I do not care about how much this hurts your feelings. You and your hurt feelings can jump off a fucking cliff for all I really care.
I do not feel any sort of guilt or pity for feeling as I do. You sure as shit feel no pity or love for me as evidenced by the defamatory accusations you’ve thrown at me so why the fuck should I care about you at all?
My physical and mental suffering will be long and anguished after those false and malicious defamations of my character you tossed out for mass consumption. But because I really don’t want this to have to go any further than this letter, I’ll let it slide for now.
So fuck off. Disappear. Don’t come back. Forget my name. Eat shit and die. Do whatever you have to do to live with yourself, but do it away from me. Changing your opinion and coming back to me in a kind way is out of the question at this point so wipe your ass with the idea. You should have considered that before you became a law abusing shithead who apparently knows dick about the law in the first place. You get no kindness. You don’t deserve it. You get no respect. You haven’t earned it.
And should you finish this letter and you and your law team still think you would like to pursue this fruitless, piece of crap litigation and follow through on your threats against me, understand that even though I would rather avoid court with all my heart, I will eat you and your legal team’s fucking lunch and shit it on your table. The law is on my side and since I will still be suffering both mentally and physically from the defamations I was willing to let slide for now, I will go for the throat. Big, behemoth litigators picking on Joe Little Guy with all the weight of Random House behind them will not look good and I will be looking forward to seeing that empty, sullen look on your face when you realize that your ignorant pursuit of this shit has cost you everything you own. It will, without a doubt, be the best and happiest day of my life.
I hope you’ve learned your lesson.
Now, be gone…