DGDB&D: a Texans blog.

Quid Pro Quo. Act Like Ya Know.

Aug 19, 2007 Athletes who don't stab people, Batman, Chad Stanley, DeMeco Ryans, Demarcus Faggins sucks, Legal stuff, Self-Referential Stuff

This should be the final entry in the DGDB&D / DeMeco Ryans saga. You might recall the last entry, where the attorney told me that DeMeco was going to make a donation to StandUp For Kids and send an autographed football to my son.

Well, a few days ago, I received word from the attorney that the football had been mailed, that BOTH DeMeco’s Foundation and the law firm were going to make donations to the charity, and that SUFK would actually be the initial charity donated to by DeMeco’s Foundation.

Then, yesterday, I received a package from Alabama to find not just a single football for Gabe, but two footballs along with other autographed memorabilia. Once again, the people involved had gone above and beyond.

So, it is with this last fact in mind that I have decided to go ahead and shorten the name of the blog (at least as it’s used here) to DGDB&D. They have not asked me to do this since the initial emails, nor has there even been any hinting about doing it in exchange for the gifts. Quite the contrary, actually–it seems like everyone involved is more than happy with the compromise we reached. So why the change?

First, just out of a feeling of good will towards DeMeco, his attorney, and the classy manner in which the whole thing has been handled. Second, I think shortening the name will allow me to be a little less PC, especially in describing people like Chad Stanely or Petey Faggins, without wondering if I am putting DeMeco in an awkward situation with his teammates. (I might be being paranoid with that one, but whatever.) Third, and most importantly by far, it’s my little way of saying “thank you” to them for making donations that will help many homeless and at-risk children in the Houston area.

Now, don’t get me wrong here. The name of the blog is still and will always be “Da Good, Da Bad, and DeMeco.” I like that name a lot and don’t plan on pretending like the acronym does not stand for the original name. If you have already linked to it in that manner, please leave it that way. I will still refer to it both as the full name as well as the acronym. I am simply taking the name off the top of the page. Otherwise, nothing has changed. Well, other than a slight restoration of my faith in humanity.

I put the other two entries about this story below, just so I have all of them in one place.

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Update 1, Thursday, August 9, 2007

When last we left our hero (me), the disclaimer had been moved into a more prominent position, DeMeco and his attorney were happy, and it seemed as though the whole situation had wrapped up all nice and tidy.

Last night, however, the founder of StandUp For Kids, Rick Koca, found the post and commented on it. (Which is pretty cool.) Then, this morning, I received another email from the lawyer, saying that DeMeco’s Foundation is going to make a donation to SUFK, that he thanked me for bringing the charity to their attention, and that DeMeco was going to send an autographed football to my son. (All of which is also pretty cool.)

I still think there is a big underlying issue here and it’s likely one that won’t go away until one of these “blogger v. celebrity” cases winds up in court. Thankfully, all sides involved in my situation remained calm and worked through the discussion like rational human beings. (Full disclosure: I have to thank my friends for keeping my replies friendly and level-headed. I am nothing if not prone to flying off the handle.)

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Original Entry, Wednesday, August 8, 2007

If you glance to your right, you will notice that the disclaimer once buried near the bottom of the right hand column has been moved up. “Why is that,” you are likely thinking. And the answer would be “because I am a nice guy.”

Hold on. Let me back up a few days and fill you in. Because, you see, there have been some rather strange and unexpected goings on in the land of DGDB&D over the past three days.

Sunday morning, I plopped down on the couch to map out my fantasy football draft strategy and check email. Which is to say, it was shaping up to be a pretty typical Sunday.

So, you can imagine my surprise when I opened Gmail to find a letter from DeMeco Ryans’ lawyer. According to Mr. Lawyer, my use of DeMeco’s first name in the title of this blog presented some possible legal and marketing problems for DeMeco. Lawyer then said they would “greatly appreciate” it if I would remove the name.

I was puzzled. Granted, I didn’t pay much attention in law school–OK, I didn’t pay ANY attention in law school–but I was pretty confident that I was doing nothing wrong. I replied to the barrister, thanking him for a very polite email (his approach was much better than a boilerplate cease-and-desist letter) and asking him to explain what the problem was. I also mentioned that, while I was pretty sure I wasn’t doing anything other than exercising some free speech, I was totally willing to work with him and his client (including changing the name) if we could reach some sort of mutually beneficial agreement.

The law-talkin’ guy replied, still in a pretty gracious manner. He said that owners of intellectual property have a right to police “the marketplace” in order to prevent loss of income or marketing viability resulting from unauthorized use, that DeMeco’s marketing agreements require him to be pro-active in making sure people aren’t illegally using him or his image, and that my use could potentially expose DeMeco to lawsuits through no fault of his own. (I had also asked in my previous email if DeMeco was aware of the site and the attorney assured me that he was. Which means DeMeco might be reading this. Email me, dude.)

Anyway, there are some nuggets of truth to what he was saying. In a vacuum, at least. As they applied to my situation, however, this explanation fell a little short. So, another email from me to him. I asked him to point to me where anyone has intellectual property rights in his or her first name, especially as that would apply to a non-commercial blog. (The non-commercial aspect is the key to this whole exchange, really.) Also, because he had mentioned in his previous email that DeMeco was cognizant of the importance of fans and free speech, I suggested that asking a fan to abridge his free speech rights seemed contradictory.

The attorney again replied. He “explained” that DeMeco has common law and statutory rights in his name and substantial rights of publicity. He also said that, insofar as free speech goes, they have no issue whatsoever with me (or anyone) discussing DeMeco’s play in the blog; they were merely concerned that his name in the title of the blog could lead someone to think Ryans supported everything that was said here. (Author’s note: I want to meet someone that clueless. That’s how millionaires are made.)

And that’s where it sat as of Monday night. I read back over his previous email. I had to give him points for aggressively representing his client; he was hyper-vigilant. Still, the legal analysis was not quite right because this is (and always has been) a non-commercial site. And–without getting into boring legal crap–he couldn’t claim assumption because, again, I was not making any money off of his name. In short–there was pretty much no way they could force me to change. Still, I was willing to work with them, if only because I didn’t like the idea of having DeMeco or the Texans organization mad at me.

But how to respond to the lawyer? He had mentioned throughout the exchange that he and his client were amenable to reaching a compromise that would leave all of us happy. I guess he thought I would ask for some tickets or something. I don’t know. Instead, I decided that, if I was going to give up something that I didn’t have to, I wanted someone who really needed help to benefit from it. So, I replied with an offer.

I proposed the following exchange: I would shorten the name of the blog to the acronym “DGDB&D” in the header, the page title, and by email to anyone who links here. In return, DeMeco would make a donation to the Houston Chapter of Stand Up For Kids. (They get homeless and at-risk children off the street.) Also, if DeMeco was interested, I’d like to do a phone interview. I figured this charitable donation was in keeping with the whole Ahman Green-Jason Simmons thing and would be good press for the team and DeMeco (and, yes, me). Conversely, I offered to move the disclaimer up on the page so that it was more prominent, but stipulated that I would be keeping the name if I did that.

Lawyerman replied the next day (yesterday) and told me he would run it by his client.

Today, I get an email at 7:14 CST. They had chosen the latter option and would be placated if I moved the disclaimer up. So long as I kept it non-commercial. He also said that they would suggest the charity to DeMeco’s foundation at some point in the future. Which brings us to where we are right now.

This whole thing was somewhat interesting, not only from a legal standpoint, but also from a blogger/free speech/new media point of view. Part of me thinks this was just a good attorney doing what he thought was best for his client. I mean, I had a new hit from where his office was located about ten minutes before the first email, so I kind of assume he took it upon himself to run with the ball. And there is no harm in that. Hell, I would want my representative to do the same. (I also respected how cordial he was through the whole thing and his stick-to-it-itiveness throughout the legal back-and-forth.)

Another part of me, however, wonders if this is the tip of the iceberg. As sites like Kissing Suzy Kolber and Ghosts of Wayne Fontes and Fire Joe Morgan grow in popularity, once has to believe that the sites’ namesakes are aware of their existence. To the extent that any of it results in negative feedback or positive income, I would imagine that the parties named will slowly start to intervene. And, in the realm of the All Powerful NFL, I assume the “aggrieved” parties will have Goodell and Co. behind them more often than not. It will then be up to the courts to decide where free speech and fair use end, if at all.

For now, however, this blog lives. Free speech rules.