The Price of Parody: Invisible Children Threatens Lawsuit Against Hoax Site
The KONY 2012 video, depicting Ugandan warlord Joseph Kony, created quite a bit of controversy and elicited widespread criticism when it was released earlier this year. The video, which currently boasts over 90 million views on YouTube, was created by activist organization Invisible Children in order to increase public support to capture Joseph Kony.
Recently, three NYU students created kickstriker.com, parodying kickstarter.com, as a hoax site designed to critique the over-the-top language used by Invisible Children, the organization’s “new activism that puts the reader…at the center of the story,” and the crowdfunding that has gained recent popularity. Kickstriker, as evidence of the site’s satirical purpose, asks site visitors to “pledge some cash to bring Joseph Kony to justice by hiring private mercenaries” and when visitors attempt to do so, the site pops up with a notice explaining that Kickstriker is a hoax. Upon discovering the site, Invisible Children promptly sent the group behind Kickstriker a cease-and-desist warning to take down the parody page.
Invisible Children is claiming that Kickstriker’s page is causing public confusion of their organization’s copyrighted and trademarked property. The activist group is further claiming that Kickstriker’s page constitutes an impermissible infringement of their intellectual property, which, if not remedied, will result in Invisible Children pursing further legal action against Kickstriker. Invisible Children is also demanding that Kickstriker pronounce, in a public location, that they had nothing to do with Invisible Children or KONY 2012.
Kickstriker founders, Mehan Jayasuriya, James Borda, and Josh Begley, are fighting back, claiming that the trademarked phrases of “Invisible Children” and KONY 2012” are protected under the fair use doctrine. The fair use doctrine, under copyright law, states that an owner’s right to reproduce his or her work is subject to certain limitations and exceptions. One such exception is that of a parody of a work or parody of some of the content of a work, which is considered fair use.
The Kickstriker founders have no intention of backing down, and if Invisible Children follows through on the threats and actually bring suit, the court will be posed with the question of whether the hoax website constitutes a parody. To be determined a parody, the work must ridicule the original, usually well-known work, by imitating it in a comic way, and the work is permitted to use a fairly extensive amount of the original. Kickstriker is certainly ridiculing Invisible Children by pointing out the perceived absurdity of the activist organization’s purpose (i.e. crowd contributions for mercenaries). In addition, the Invisible Children organization and the Kony 2012 video are well-known, as evidenced by the staggering number of YouTube hits for the video. Kickstriker, like Invisible Children, uses pictures of Joseph Kony and sets up the donation portion of the site in a similar fashion to Invisible Children – which would likely be allowed as permissible use of the original. Thus, a court is likely to find that the Kickstriker website constitutes a parody under copyright law, meaning the site would qualify as fair use and would not be ruled as infringing on Invisible Children’s intellectual property.
Even if Invisible Children decides not to bring suit against Kickstriker for the alleged copyright and trademark infringement, the organization has plans to stay in the public eye in other ways: KONY 2012 Part II was released this past April, and the organization planned a gathering at a meeting of the United Nations Security Council in June to deliver millions of pledges in support of Joseph Kony’s capture.