Barney's legal threats end up extinct

Lawyers for the plush children's icon have agreed to pay $5,000 to settle a federal lawsuit filed against them in August by the Electronic Frontier Foundation, which was defending an anti-Barney Web site called the "Source of All Evil."

The settlement, announced on Tuesday, caps a five-year campaign by the New York firm of Gibney, Anthony and Flaherty to rid the Internet of unflattering images of its plump saurian client.

Matthew W. Carlin
Barney's attorney

A typical copyright-invoking nastygram from Matthew Carlin, the law firm's lead Barney lawyer, goes something like this: "It is unlawful...to use this property without the permission of Lyons Partnership. These materials must be immediately removed." (Lyons Partnership owns the rights to Barney.)

Carlin did not respond to a request for comment on Tuesday.

Barney's campaign against online critics goes back at least to mid-2001, when Gibney, Anthony and Flaherty assailed Web sites that mirrored a hacker 'zine. One article alleged that the rotund creature was "really a cross-dressing, child-molesting, rump-ranger."

Another target of Barney's ire was a Web site, maintained by Baltimore-area programmer Rob Carlson, which depicts a Barney toy suspended from the ceiling. Last year, Carlin claimed the photograph illegally "depicts a plush Barney toy in a violent manner or position."

Credit: Stuart Frankel

According to EFF and scholars of the First Amendment, Barney's lawyers went too far in their frequent legal threats. EFF's lawsuit filed in August (click for PDF) sought a ruling that the anti-Barney site created by Stuart Frankel "qualifies as fair use and does not infringe any protected copyright or trademark interest."

The settlement (click for PDF) says that, in addition to paying $5,000, Barney's owners will not "sue or otherwise make any claim" against Frankel.

While the settlement technically applies only to the lawsuit involving Frankel, in practice it's likely to deter future legal threats by Barney's lawyers against Web parodies.

"We wish we hadn't had to file a lawsuit to finally get Barney's lawyers to stop harassing a man who was just expressing his opinion about a cultural phenomenon," EFF staff attorney Corynne McSherry said.

Barney's lawyers have been aggressive in pursing trademark lawsuits even before the Internet opened up a new venue for critics of the anthropomorphic T-rex. They once sued the creator of a sports mascot that, as part of its performance, assaulted and generally did violence to a Barney look-alike.

But the 5th U.S. Circuit Court of Appeals ruled in 1999 that the performance was a parody and not forbidden by trademark law. "Even if young children--like the two-year-old who had such a traumatic reaction to the down-trodden Barney--are in attendance, we would expect them to be supervised by parents who could explain the nature of the parody," the court decided.

Barney is best known for his starring role on the PBS Show Barney and Friends, which debuted in 1992. His theme song includes the lyrics: "I love you, you love me, we're a happy family, with a great big hug and a kiss from me to you, won't you say you love me too?"