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By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
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By Steve Lowery
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By Bob AulAn internal document recently leaked by an unnamed Victoria's Secret insider, and posted online by the Smoking Gun has the lingerie company's thong in a twist. In June, the website (the smokinggun.com) reproduced a six-page Dress for Success guide in which the negligee hawker told employees not to wear sleeveless dresses, open-toed shoes, more than two earrings per ear, or more than two rings per hand.
Victoria's Secret attorneys fired off a letter on June 28 demanding that the dress code be taken down and the deep throat identified. In rattling the Smoking Gun's cage, the company relied not only on confidentiality clauses but also on the federal copyright law.
That strategy should strike fear in the hearts of cyberjournalists, who, unfettered by the space constraints of print, have made a practice of posting online documents by the ton—in many cases without realizing the law is not necessarily on their side. William Bastone, co-founder of the Smoking Gun and a former investigative reporter for the The Village Voice (the Weekly's sister paper), says he believes the site has a "fair use" privilege to air the company's dirty undies in the name of journalism. "It didn't cross my mind to actually call our lawyers," Bastone says. "I've been threatened by members of the Genovese crime family, thrown down the stairs by politicians, and chased by people with shovels. The bra merchant doesn't mean much to me."
Bastone and partner Daniel Green posted the cease-and-desist letter, along with a challenge: "Hey, Victoria: bring it, don't sing it. Your Miracle Bras and flyaway baby dolls don't scare TSG."
Bastone says reporters should have the right to make public even private information. "Their idea that a news organization is unable to use documents that it gets from a private organization is really kind of funny," he says.
But unlike newspapers, sites such as Bastone's add only minimal text to the records they post. That difference could subject sites to copyright suits, say intellectual-property experts, who warn that online journalists shouldn't be cocksure the fair-use doctrine will protect them. "It all depends on the circumstances," says Los Angeles intellectual-property attorney Jodi Sax (lawgirl.com).
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 of President Gerald Ford. In that decision, the court established 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 hinge on questions of whether quoting from the document lessens its commercial value, how great a proportion is quoted, and whether the record itself is newsworthy.
If Victoria's Secret lawyers, who didn't return calls, can demonstrate that the Smoking Gun used its entire unpublished dress code solely for profit—not because it was in any way newsworthy—then the panty makers are more likely to be able to make a case for copyright infringement.
In a series of chilling decisions for Web journalists, courts have often frowned on the copying 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 Hubbard's writings online. And in another case involving Hubbard's writing, 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, also in a Hubbard case, that even "banal text" is copyrighted, though it excused a journalist for posting only small parts of a document on her website.
Yet Sax—who has assisted the Church of Scientology with unrelated intellectual-property matters —feels confident the Smoking Gun will prevail. "I think [Victoria's Secret's] claims are flimsy at best, typical lawyer scare tactics," she says. The Smoking Gun "is not interfering with Victoria's Secret's market for its work because there is no market for it." But she cautions that there is a "slippery slope" for journalists who want to post entire documents online. "[S]ource material most certainly can be subject to copyright protection," she says. "This is really not a great test case."
Meanwhile, the reporter who took on the mob has no fear of the lingerie empire. "Now I'm going to be the guy who folded on Victoria's Secret?" Bastone says. "I can't imagine that."