are there laws/rules that govern fansites? what does a disclaimer that said performer is not affiliated with the site cover, and can the webmaster then state that information came from the performer, and promise things and then not come through?>
Fansites are legal so long as you comply with all intellectual property rights governing the use of the images posted on the site and all laws regarding the posting of accurate information about another person. Disclaimers are usually a good idea to show that the fansite is NOT affiliate with the subject of the site. But there's no hard and fast rule about what needs to be covered in such a disclaimer. That depends upon the webmaster of the fansite. A fansite webmaster who makes promises on behalf of a performer is creating a problem for themself... but enforcement of any particular law is going to be difficult. So I guess my advice would be that if you have a fansite disclaimer - clearly stating that the site isn't affiliated with the subject, but then the website offers something FROM the subject, *I* wouldn't trust the offer. From a purely contractual perspective, however, you're missing a key element in the whole "promise" concept. For a promise to convert to a contract, you need an element called "consideration" - in other words, YOU have to promise something in return. Now, that something can be small... websites like gizmodo offer giveaways all the time in exchange for submitting a comment and adhering to their giveaway policy. So it doesn't have to be money. But without consideration, there is no contract... and without a contract, you're going to have a difficult time convincing a court that the webmaster owes you something.
Thanks for the information and response. Thanks for explaining the consideration element. that makes sense. does the disclaimer cover the webmaster or the subject of the website? are there laws that the webmaster needs to follow when creating a site? also does the subject of the site have to do something if the webmaster is claiming that they are getting information from the subject/perfomer and misleading visitors. are webmasters allowed to pick and chose who is given information and who is not. Thanks again for your help and response
The disclaimer is usually written to cover the webmaster. As for laws, the webmaster has to contend with all sorts of laws - everything from intellectual property laws to contracts laws... even to some criminal laws. I don't know that anyone could generate a complete list. I'm not sure I understand your last question. The subject of the site should have at least sent an e-mail to the webmaster affirming that webmaster has maintaining some form of "approved/authorized" fan site if the webmaster is going to claim a connection to the subject. In most cases, however, I hope that people know that there are VERY few fansites that are actually getting information straight from the subject. Most celebrities at this point have a solid PR team that is maintaining an official site... and thus there is no real need to manage a slew of fansite webmasters (which was a little more common in the earlier days of the internet). As for webmasters "picking and choosing", again, I'm not sure I understand. Do you mean can a webmaster exclude certain visitors for arbitrary reasons? Yes. So long as those reasons aren't discriminatory (per the ADA - there are a set of "protected classes"). Discrimination for any basis other than via a protected class isn't going to be considered discrimination. Make sense?
Hello Its interesting discussion and I have learned a few bits here too, Thanks jiGordan I hope you don't mind lianas, but can I post my query as well as its quite similar to you. Where do product name sites for example like samsungomnia.com and samsungtocco.com stand as these domains are not registered by samsung and maintained by other webmasters. If Samsung were to pursue with them(hypothetically), whats the maximum they can do. Can they just ask for transfer of domain or can things get any more serious? How about domain like SamsungOmniaReview.com and where independent review is posted with a disclaimer that website is not related to Samsung
Thanks jiGordon for your response. I am not sure that I understand about the approved/authorized fansite. If a webmaster is claiming the subject is not affiliated with the website and the site is not their official site, how then can they claim information came directly from them? I agree that most people do and should know that is not the case. I have seen sites link the information to the official site for reference however I have seen others claim they got it from the subject themselves. who;s responsibilty is it to monitor these situations especially when people are logging onto the site and trusting the webmaster, and then finding out the information is either not accurate or that the webmaster has another agenda in mind? I realize most celebrities are flattered by the attention and these sites,and don;t want to risk angering and losing fans, however who is responsible for seeing people do not get mislead by these claims etc? I have seen that the sites hosting these fansites state they are not responsible for the content. is it then up to the celebrity to contact the webmaster regarding the content of the site if it is misleading to fans? I think that is what I was trying to say in my last question. If the purpose of these sites is to educate people about the celebrity and their career and get people to support them and what they are doing, how is that being done if people are putting up sites claiming despite a disclaimer that the celebrity is giving them the information, excluding people for no reason and promising access to the celebrity and then not coming through? I do understand the consideration element you explained, however who regulates this activity and these sites? Thanks for all your help. It is appreciated
Ultimately, the person who is posting the information is responsible for what they're posting. But, there's a test of reasonableness, too. The general rule of thumb, that even courts are acknowledging, is that stuff posted on the internet has a presumption of less-that-100%-correct unless proven to be accurate. In other words, the reader should know that information posted about a celebrity, unless clearly posted by the celebrity him/herself, isn't probably completely correct. Besides, what obligation do I have, as a website owner, to give you correct information? The answer is "none" - unless, as we discussed before, there's some sort of contractual promise involved (ie: you're paying me to provide you correct information). Overall, I would simply never trust a webmaster's promise to give you anything of value related to a celebrity.
In and of themselves, the URLs including the Samsung name violate Samsung's trademark. If Samsung wants them back, you can be subject to not only transfer of the domain, but also statutory and other damages for trademark infringement. First we should look at if you're going to lose the name under the UDRP at a WIPO action. First Samsung would have to prove that they own the trademark "Samsung", which they certainly do. The only defense to using a trademarked word is spelled out by the UDRP, which states in paragraph 4(c) that a respondent may have rights or legitimate interests in a domain name if: "(i) before notice of the dispute over the domain name, the respondent has made "use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services"; (ii) the respondent has been "commonly known by the domain name"; or (iii) the respondent is "making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."" I assume that you're planning to defend under subsection (iii). That means that you cannot make ANY money off of the site at all, no AdSense, no banner ads, NOTHING. I'm not sure that this was your plan. However, if we're talking about additional damages other than just losing the name, we have to look at trademark law. The thing that is most important is whether your usage falls within a fair use exception to the Lanham Act (which is the US law governing trademarks). Generally, there is a nominative fair use defense that is used to overcome the presumption that you've infringed the trademark. The nominative use defense requires that: 1. There is no readily identifiable way to discuss the product or service without mentioning the trademark (e.g., You're not required to refer to McDonalds as "the fast food chain with the golden arches as its logo"); 2. That you're using the minimum amount of the mark necessary to identify the service or product (i.e., the name, but not the logo or font); and 3. That you do not suggest affiliation or sponsorship in any way by the trademark holder. You need to stay within the bounds of both the UDRP and the Lanham Act to avoid problems. Let me know if you have other questions. Deena ________________________________________________________ Any opinions are offered without knowledge of the specific law of your jurisdiction and with only the limited information provided in your post. No advice given here should be reasonably relied upon by you or any third party without consulting an attorney who is aware of all of the facts and law surrounding your situation. Any advice given here is not intended to create an attorney-client relationship in any way.
A site could be not supported, affiliate, etc with a celebrity and get info from the celebrity, per example in an interview or just talking. BTW, i dop't think the mission of a fan site is to "educate" people about a celebrity, but its just entertainment. So if there is no fraudulent intention, but just "big mouth", no claim will procced.
Thanks Deena for your detailed reply, Its very useful, But can I attept to clarify further a few points I understood from your post its fairly simple in terms of loosing the domain name if there is a Trademark term used in the domain, but there will be uncertainty if one of the UDRP terms is used Does it mean any commercial gain at all or only commercial gain which is obtained from misleading the customer or tarnishing the trademark. For example a domain name like "samsumgomniareview.com" does not pretend that its from Samsung and reflects that its an indeendent Review site and earns money from affiliate program with a third party like amazon.com where will the argument stand? Lets assume that a domain name like "SamsungOmnia.com" is ordered to be transferred to Samsung by court. But if the previous domain owner had clearly mentined on site that its not related to samsung and has not used Samsung Logo etc to pretend its from Samsung and only used the press released photos of the product, will that be a sufficient defense against any additional damages. Lastly, what generaly happens in practice, Do companies usually just send seize and dessist letters to owners and ask for domain transfer and then leave it or usually they go to court for additional damages which obviously means a lot of money and time is spent. Are there any links to such cases in the past, if possible something like "productnameReview.com" domain name. Thank you very much for your help