By Heather Murray
Several months after the Union Square Partnership sued activist Savitri Durkee in an attempt to shut down a fake Union Square Partnership Web site she created, Durkee and the Partnership reached a settlement in which she can continue to publish her parody site with some restrictions.
Durkee, wife of performance artist/activist Reverend Billy and director of his Church of Life After Shopping, launched the Web site in May 2008. The site criticized the Partnership as part of Reverend Billy and Durkee’s group’s long-running campaign to stop the city from leasing the Union Square pavilion to a private restaurant.
Durkee issued a press release June 30 to local newspapers proclaiming that the Union Square Partnership apologized for its restaurant plans and had abandoned them.
The e-mail directed readers to Durkee’s fake Web site, www.unionsquarepartnership.org, where they could view a video statement supposedly of U.S.P. Executive Director Jennifer Falk conceding, “We made a mistake” concerning the pavilion. In fact, Durkee was impersonating Falk in the video. The real address of the Partnership’s Web site is www.unionsquarenyc.org.
The sham site also suggested that the Partnership — a business improvement district — planned to convert into a “Community Improvement District.”
The day after the press release was issued, the Partnership contacted Durkee’s Web-hosting company, DreamHost, demanding the site be taken down. DreamHost disabled access to the site July 5, but then received a request from Durkee that the site be reinstated.
The Partnership filed a lawsuit in federal court against Durkee July 30, accusing her of copyright infringement for imitating the look and feel of U.S.P.’s Web site and logo.
In August, U.S.P. submitted a complaint to the World Intellectual Property Organization. In October, that organization’s arbitration panel ruled that Durkee must transfer the Web site domain names unionsquarepartnership.org and unionsquarepartnership.com to U.S.P. The panel in its decision pointed to other panels that have ordered transfers of domain names in criticism cases under the “initial interest confusion” doctrine. The panel reasoned that creating a domain name for a criticism site identical to that of the entity being parodied can often lure Internet users seeking the “real” entity by false pretenses.
The Partnership in its Jan. 20 settlement with Durkee agreed not to object to any new Web site she launched as long as she didn’t use certain domain names or post original photographs from the Partnership’s Web site.
Durkee agreed not to put up an impersonation of any member of the U.S.P. board on the Web site and was required to post a disclaimer on the site stating it did not reflect U.S.P.’s views. There was no cash involved in the settlement.
Durkee has launched a new site, www.unionsquarepartnershipsucks.org.
Durkee’s husband, Reverend Billy, said, “The settlement is really a triumph for our work. The Partnership basically wanted to expand their rights to that logo in the media sphere in a really aggressive way.”
Durkee said of the settlement, “It shows that you can’t shut down citizen dissent.” She also pointed out wryly that there would never have been a lawsuit to begin with if U.S.P. had registered its own domain names, and that there are better ways U.S.P. could be spending its money than on funding what she called a “frivolous lawsuit.”
Corynne McSherry, of the Electronic Frontier Foundation, which represented Durkee, along with law firms Mayer Brown and Gross & Belsky, said in a statement, “The Internet has revolutionized political activism, allowing everyone to have his or her say on a global platform. Parody is an important part of America’s free speech tradition, and with her online parody Ms. Durkee brings this protected form of criticism into our digital age.”
Shane Kavanagh, a spokesperson for the Union Square Partnership, originally declined to comment on the settlement, but later sent the following statement: "The north-end project in Union Square Park is fast approaching the 50 percent completion mark and is on schedule for full completion in the fall. The Partnership greatly respects the park’s rich history as a place for free speech and assembly, but we felt it is important to ensure that there was no confusion about the project’s successful progression and its many benefits to the community."
Durkee created her parody site shortly after the group NYC Park Advocates and the Union Square Community Coalition filed a lawsuit against the Bloomberg administration and the Union Square Partnership, claiming the city didn’t have the state’s approval to convert public parkland for nonpark use. The state Legislature must approve any “park alienation,” wherein public parkland is converted for private use.
A May 2008 ruling by State Supreme Court Justice Jane Solomon bars the city from installing fixtures in the pavilion and blocks the city or a private concession from operating the proposed seasonal restaurant in the pavilion.
The ruling will remain in effect until Solomon decides the case. The last court date was in November.
The redesign, sponsored by U.S.P., calls for rehabilitating the pavilion, replacing the building’s east side and constructing a new basement. The pavilion’s west end would be leased to a private concession to operate a restaurant six months of the year. The other six months the pavilion would be used for community programs.
