By Todd Allen
We told you about the now Legendary webcomic The Oatmeal having an amazingly sarcastic response to a threatening legal letter and starting a charitable fundraiser. Then we told you that the lawyer who sent the initial letter decided to sue Matthew Inman (of The Oatmeal), the charities he was planning on donating to, and Indiegogo (which he was using as a fundraising tool.) If you thought the strangest was over, this affair has done nothing but snowball since then. Yes, while following the links spinning out of this story, I came across Batman’s point ears in a place I really wasn’t expecting to see them. We’ll get to that in due course.
Charles Carreon, the lawyer at the center of this, has been doing plenty of talking to the media. The online legal community has been picking apart his complaints. The Electronic Frontier Foundation has even gotten involved. This may or may not be a landmark First Amendment case, but it definitely is drawing a lot of attention.
Let’s start with the E.F.F.
Inman started his campaign last week as part of a protest over legal threats he received from the website FunnyJunk. In 2011, Inman published a blogpost noting that FunnyJunk had posted many of his comics without crediting or linking back to The Oatmeal. A year later, FunnyJunk claimed the post was defamatory and demanded $20,000 in damages. Inman crafted a unique response, which included some comic art. Instead of paying the baseless demand, Inman asked for donations for the American Cancer Society and the National Wildlife Federation. The campaign raised more than $200,000 so far.
An attorney for FunnyJunk, Charles Carreon, has now responded with a lawsuit filed on his own behalf. Carreon’s suit names Inman, the two charities, and the online fundraising platform IndieGoGo, claiming trademark infringement and incitement to “cyber-vandalism.”
“This lawsuit is a blatant attempt to abuse the legal process to punish a critic,” said EFF Intellectual Property Director Corynne McSherry. “We’re very glad to help Mr. Inman fight back.”
Suffice it to say, Inman is lawyered up pretty good at this point. The E.F.F. even calls this a “bizarre lawsuit” in their headline.
Over at Popehat, which has been following this quite closely, Ken (an actual lawyer… in California, no less — which is important with some of the suit’s complaints) has a lengthy post taking apart this lawsuit. A highlight involving the now famous “bearlove”:
True Versus Truthy: Mr. Carreon makes a number of factual assertions that appear to play rather fast and loose with the requirements of Rule 11, cited above. Take, for example, his claim in paragraph 37 that “Mr. Inman’s stated intention is to turn over only $20,000 of the amount raised by the Bear Love campaign” to the charities. Mr. Carreon’s own exhibits show that he is lying. Mr. Inman said that he was trying to raise $20,000 (at the time of this writing he has exceeded ten times that) and that he would donate half to one charity and half to the other. Later, when results far exceeded expectations, Mr. Inman posted an update, saying “a lot of people have been asking what I plan to do with the extra money we raised over the initial $20,000. 100% of it is going to charity. I’m going to add 2 more charities to the list, in addition to the ACS and the NWF.” Mr. Carreon also implies falsely in paragraph 30 — as he has stated falsely to the media — that the bear-loving mother Mr. Inman drew was meant to be Mr. Carreon’s mom, when in fact the post makes it perfectly clear that the statement is directed a FunnyJunk, a web site that does not actually have a mother (unless, perhaps, its mother is AOL).
And Mr. Carreon has indeed been talking to the media. Here’s a bit from The Stranger:
FunnyJunk declined an interview request, but Carreon agreed to be interviewed. He called the charity campaign deceptive. “The charity is used as a foil,” he told me on the phone, arguing that there’s nothing to stop Inman from pocketing the proceeds. “This is like having a bum put on an outfit outside the grocery store and saying that he’s collecting money for the Salvation Army.” For his part, Inman maintains that every penny will go to charity.
And this little gem:
Ironically, the threat of the first lawsuit never materialized. Carreon admits he was misinformed: Before demanding the $20,000, which was based on FunnyJunk’s “estimate of advertising losses sustained due to the taint of being accused of engaging in willful copyright infringement,” Carreon was told that all Oatmeal comics had been taken off the FunnyJunk site, even though they hadn’t. “If I had known… no demand would have gone out,” he says.
That’s right. Even lawyer who sent the letter that started this unfortunate chain of events now admits said letter should have been sent. Which prompts The Stranger to act as what may be the sole voice of reason (after chastising Carreon for not knowing when to quit):
What’s really sad is that a short phone call early on in this whole affair could have prevented it. Mind you, it would also have stopped Inman from raising $198,000 and generating a whole bunch of new traffic for his website.
But no, the strangeness continues, as Ars Technica has also been following this story closely and talking to Carreon. First Carreon threatens to subpoena Ars Technica and Twitter in his quest to find out who’s satirizing him on Twitter and sue him.
Asked on Twitter whether he really intended to “drag Ars Technica & Twitter into this,” Carreon has now responded: “Of course I will: Doe 1 in the Complaint becomes named defendant after Twitter and Ars Technica answer subpoena.”
Ars Technica titled their next piece on Carreon “The Internet’s most hated man.” In it Carreon offers an expanded explanation of his… interesting… interpretation of laws surrounding charitable fundraising as it would apply to this suit:
Carreon also argues that Inman and IndieGoGo should, under California law, be considered commercial fundraisers for charitable purposes, because they are receiving “compensation for their efforts.”
“Nine percent of the take isn’t compensation?” Carreon thundered when asked about this, referring to the amount IndieGoGo would receive if the total amount is not reached. (IndieGoGo’s fee actually falls to four percent when a given goal is reached, which has already happened in this case).
Because Inman initially asked for $20,000 and has since raised over $200,000—Inman has already made clear on the campaign’s site that he will donate the entire amount to charity, including two new target charities—Carreon believes him to be untrustworthy.
“It sounds like he stands to make $180,000,” Carreon said. “He’s the authorized agent of IndieGoGo. I know this shit is hard to put together. That’s why we hire lawyers, because we read the statute and we take the risk.” (“Inman’s commitment after the fact is not evidence of his original intention,” Carreon clarified later by e-mail).
“Inman’s idea to add two more charities is another act that shows the risk of money being raised for one purpose to be diverted to another. For example, I raise money for an Israeli charity to pay for trips to the Holy Land, but then decide that half the money should go to Palestinian orphans, or more disturbingly, to Hezbollah, which also has a charity wing. It’s one more reason why IndieGoGo should not contract with agents like Inman who do not know that ‘adding charities’ to a campaign is obviously ‘bait and switch’ false advertising.”
Ars Technica also joins an increasing number of pointing out his previous behavior and his wife’s website. Warning that “tawdry” link is 100% NOT SAFE FOR WORK.
As noted above, one of the biggest head-scratchers in the entire case is Carreon’s previous history of representing american-buddha.com, a website run by his wife (he contributed as well). The site makes some very tawdry and salacious satirical visual gags against various conservative commentators and members of the Bush Administration. When the site was taken down in 2006 over a pornographic photoshopped image involving newspaper columnist Kathleen Parker, Carreon sued the city of Ashland, Oregon (the city owned the network hosting the site). The suit came on the grounds that the city was infringing his freedom of speech. He lost in district court and again on appeal.
We’ll note that the Bearlove fundraiser has passed $212K and end with the words of noted First Amendment attorney Marc John Randazza:
Then, Funny Junk hired a guy who I know, like, and consider to be a friend: Charles Carreon. Charles wrote what I thought was one of the most ill-considered demand letters ever sent out on a lawyer’s letterhead. He sent it to The Oatmeal, who eviscerated it. I have to give Inman credit, his reply was witty and frankly, appropriate. As part of his “fuck you” to Funny Junk, Inman started raising money for a couple of charities, using Indiegogo.com.
And then Carreon got upset. Instead of backing away from what was clearly an unsupportable legal position, he chose to try and get the charitable fundraiser shut down. When Indiegogo wouldn’t shut it down, he sued them along with Inman.
Carreon just made himself a meme — and not in a good way. This will not end well for him. I just want to say that I tried. I really tried to get him to come to his senses. I tried really really hard.
Todd Allen wears a lot of hats. At various times he’s been (alphabetically), a bouncer, college professor, humor columnist, Internet producer and an NBA/WNBA Beat Writer, among other things. He’s the author of Economics of Digital Comics. You should probably read it.