An internal document recently leaked by an unnamed Victorias Secret insider, and posted online by The Smoking Gun, has the lingerie companys thong in a twist. In June, the Web site (www.thesmokinggun.com) reproduced a six-page Dress for Success guide in which the negligee hawker told employees not to wear sleeveless dresses or open-toed shoes, more than two earrings per ear, or more than two rings per hand.
Victorias Secret attorneys fired off a letter June 28 demanding that the dress code be taken down and the deep throat identified. In rattling The Smoking Guns cage, the company relied not only on confidentiality clauses, but on the federal copyright law.
That strategy should strike fear in the hearts of cyber-journalists, who, unfettered by the space constraints of print, have made a practice of posting online documents by the ton -- without always realizing the law is not necessarily on their side.
William Bastone, co-founder of The Smoking Gun and a former investigative reporter for The Village Voice, says he believes the site has a fair use privilege to air the lingerie companys dirty undies in the name of journalism. It didnt cross my mind to actually call our lawyers, Bastone says. Ive been threatened by members of the Genovese crime family, thrown down the stairs by politicians and chased by people with shovels. The bra merchant doesnt mean much to me. Bastone and partner Daniel Green posted the cease-and-desist letter, along with a challenge: Hey Victoria: Bring it, dont sing it. Your Miracle Bras and flyaway baby dolls dont scare TSG.
But unlike newspapers, sites such as Bastones add only minimal text to the records they post, which could subject them to copyright-infringement suits, say intellectual-property experts. It all depends on the circumstances, says Los Angeles intellectual-property attorney Jodi Sax (www.lawgirl.com).
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Sax points to a landmark 1985 case against The Nation, in which the U.S. Supreme Court ruled the magazine did not have the right to publish excerpts from an unpublished memoir by President Ford. The Supremes said that the need to report news is only one of several factors that must be balanced in order to justify a fair-use copyright exemption. The others are whether the original documents commercial value is reduced, how much of it is quoted, and whether the record itself is newsworthy.
If Victorias Secrets lawyers, who didnt return calls for comment, can demonstrate that The Smoking Gun used its unpublished dress code solely for profit -- not because it was in any way newsworthy -- then they are more likely to prevail in a copyright-infringement action. Courts have often frowned on the publication of entire unpublished works. In 1996, Netcom had to settle a copyright case with the Scientology crowd after allowing a dissenter to post portions of guru L. Ron Hubbards writings online. And in another case involving Hubbards writings, a court ruled that fair use can be restricted to minimal use. Foreign judges agree. Basing its decision on the U.S. precedent, the Hague ruled last year in yet another Hubbard case that even banal text is copyrighted, though it excused a journalist for posting only small parts of a document on her Web site.
Yet Sax -- who has assisted the Church of Scientology with unrelated intellectual-property matters -- feels confident The Smoking Gun will prevail. I think [Victorias] claims are flimsy at best, typical lawyer scare tactics, she says. The Smoking Gun is not interfering with Victorias Secrets market for its work, because there is no market for it.
Meanwhile, the reporter who took on the Mob has no fear of the lingerie empire. Now Im going to be the guy who folded on Victorias Secret? Bastone asks. I cant imagine that.