June 26, 2012
Another juicy chapter opened earlier this month in internet culture and the law, when Matthew Inman, creator of the web comic The Oatmeal , received a demand letter from an attorney on behalf of humor website FunnyJunk.com asking for $20,000 in settlement of FunnyJunk’s claim that Inman defamed FunnyJunk … by complaining about FunnyJunk posting his comics without authorization. In response, the outraged Inman launched a campaign he called Bear Love Good, Cancer Bad to raise $20,000 that he would not give to FunnyJunk but would instead donate to the American Cancer Society and the National Wildlife Foundation. Within a day, Inman’s campaign raised $100,000, and as of this writing, pledges have exceeded $200,000—ten times Inman’s original goal.
This past week, FunnyJunk’s attorney filed suit, naming himself as plaintiff, against not only Matthew Inman but also Indiegogo, the website that facilitated the fundraising, along with the American Cancer Society and National Wildlife Foundation. That complaint is available on Westlaw here: 2012 WL 2225460. Essentially, this suit alleges that neither Inman nor Indiegogo are statutorily authorized to solicit donations under California’s Supervision of Trustees and Fundraisers for Charitable Purposes Act, CA Gov. Code § 12580 et seq, and the Charitable Solicitation Disclosure Law, CA Bus. & Prof. Code § 17510 et seq, and seeks to impose a constructive trust on the money raised. The complaint also makes a claim under the Lanham Act, 15 USCA § 1125(a), for use of a false designation, for an unknown person creating a Twitter account using the attorney’s name. And the complaint includes a claim against Inman for “inciting cybervandalism.” Relief sought includes actual damages, disgorgement of profits from Inman and Indiegogo, treble damages under the Lanham Act, punitive damages, and attorney fees.
You can use the following plain-language search in News on WestlawNext to retrieve numerous articles on this interesting situation. Note, they generally have a heavy editorial slant (and one not very flattering to lawyers):
“the oatmeal” funnyjunk
There are so many interesting legal issues here. The definition of cybervandalism in the complaint caught my eye for its lack of citation to other authority, and indeed, a search for cyber-vandalism across state and federal cases retrieves only two instances of that term in the case law. For additional related results, try this search in cases on Westlaw or WestlawNext:
cyber-vandalism cyber-attack (internet web online /2 vandal! attack! harass!)
I was also curious about the attorney’s plea for fees, as he is apparently representing himself in this action. Try searching WestlawNext for “attorney fees” pro-se attorney. There is a great ALR that surveys the case law in this area, “Right of party who is attorney and appears for himself to award of attorney’s fees against opposing party as element of costs,” 78 ALR3d 1119. As to whether attorney fees could be awarded under the Lanham Act to an attorney appearing pro se, pursuant to 15 USCA 1117, I was not able to immediately find any instance where this issue has been reached in federal court.
Perhaps the most significant issue in the case is whether Inman and Indiegogo are subject to the statutory requirements imposed for charitable solicitations. Regarding the Supervision of Trustees and Fundraisers for Charitable Purposes Act, “Commercial fundraiser for charitable purposes” under CA Gov. Code § 12599 is defined as an individual or entity “who for compensation” solicits charitable donations, or receives or controls charitable donations. While Indiegogo does receive a commission on campaigns conducted on its website, Inman himself does not necessarily stand to be “compensated” for this charitable campaign. The Charitable Solicitation Disclosure Law applies more readily on its face, defining “solicitation for charitable purposes” in CA Bus. & Prof. Code § 17510.2 as “any appeal for charitable purposes” or where the name of a charitable organization is referred to in any such appeal. But both of these laws were enacted to prevent abuses by commercial or for-profit solicitation, so it’s not clear whether they’ll be held to apply under the unique facts of this case.