April 23, 2009 | By Corynne McSherry

Wikipedia Threatens Artists for Fair Use

Can a noncommercial critical website use the trademark of the entity it critiques in its domain name? Surprisingly, it appears that the usually open-minded folks at Wikipedia think not.

Last February, a pair of artists, working with several collaborators, created a Wikipedia article and invited the general public to add to it, following Wikipedia’s standards of credibility and verifiability. The work was intended to comment on the nature of art and Wikipedia. But Wikipedia editors did not take kindly to the project, and it was shut down within fifteen hours for being insufficiently “encyclopaedic.”

Fast forward a couple of months. The artists, Scott Kildall and Nathaniel Stern, have created a noncommercial website that documents the project, called Wikipedia Art. The domain name for the project: wikipediaart.org.

Yep, they used the term “wikipedia” in their domain name. “Wikipedia” is a trademark owned by the Wikimedia Foundation. And now the Foundation has demanded that the artists give up the domain name peaceably or it will attempt to take it by (legal) force.

Wikipedia should know better. There is no trademark or cybersquatting issue here. First, the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law. (We note that Paul Levy of Public Citizen, who has helped establish key precedents on this issue, has signed on to represent Wikipedia Art). Moreover, even if U.S. trademark laws somehow reached this noncommercial activity, the artists’ use of the mark is an obvious fair use. Wikipedia Art uses the “Wikipedia” mark to refer to the project: a critical comment on Wikipedia and creativity. The disputed site describes the project, provides links to media coverage of the project, and so on. It does not use any more of the Wikipedia mark than need be; for example, it doesn’t even use the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work. Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First Amendment.

Of course, Wikipedia can bring an action under the Uniform Dispute Resolution Policy (UDRP), an international arbitration agreement to which all domain names registrars (and their customers) must agree. UDRP arbitrators aren’t bound by such niceties as fair use and the First Amendment (in fact, they’re not even bound to follow their own precedents), and UDRP decisions tend to favor established trademark holders like Wikipedia. But even if Wikipedia wins at arbitration, the arbitrator’s decision is subject to review by a U.S. court, which is bound to respect fair use and free speech principles.

In short, it is hard to see what Wikipedia gains by litigating this matter. But it is easy to see how it Wikipedia loses: What better way to call attention to the artists’ critical work than by threatening their free speech?

Here’s the thing: we like Wikipedia. We’ve even represented the organization in the past, fighting for important speech rights. So we’re frankly disappointed to see it go down this path and hope this particular page of Wikipedia history is quickly revised by the Wikipedian powers that be.

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