UPDATED : Fair Comment/fair use no defence with The Province when it comes to Enbridge.
First, numerous emails to attend to this evening, you will get a reply as soon as I can! I just walked in the door!!
Second – one email was from a source with extensive history within the industry who was a Postmedia editor, who has worked for the Province with Dan and Moriarty. This is what they had to say about this situation:
I loved your Enbridge post; If it’s of any interest, here’s what happened: Dan’s animation was superb, it came to the attention of Paul Godfrey (king of Postmedia) and Godfrey ordered it off the site. Moriarty had nothing to do with it. (Although he could have objected and quit, which he should have done.) You can speculate on the role ad dollars played, or politics, or just philosophy. But it was Godfrey, not Moriarty, who made the decision.
It’s just how things go when one guy sits in a chair in Toronto telling papers right across Canada what to do. It’s a huge problem, and it’s frustrating most of all for the people who work in the newsroom, most of whom know better.
Bingo. That means I was right when I thought Moriarty wasn’t behind the decision, based on the watcher from Postmedia head office parked on my site for hours today and yesterday – even while Moriarty called me from his car to talk about Enbridges claim on Facebook…
Which leads me to the last item of update this evening. CBC talked to Dan Murphy in a stunning ( or not so stunning depending on how cynical you are) interview in which Dan pretty much sums up what my source says above, although he doesn’t mention Godfrey. ( CBC contacted me yesterday morning because of this post and asked if I would comment on camera to the fair comment/fair use. Of course I said yes but as the story carried into today, my schedule wasnt able to fit with theirs and they clipped Ross Howard instead.)
Dan Murphy has gotta deserve some kind of award for speaking out against Enbridge. I suspect this will be the first of many incidents in times to come, which makes his public statements all that more important for all in the industry.
You can check out the CBC news spot HERE :
and the radio segment, HERE: http://www.cbc.ca/onthecoast/episodes/2012/06/26/dan-murphy/
You might also note in the comments below this post, a copy of Enbridges facebook page where they state clearly, that they did not ask The Province to remove the video… and perhaps they didn’t.
But I think implying or threatening or even hinting that millions of dollars of adverts might get pulled because they were “unhappy” their material was used leads us to one of the oldest political tricks in the book : using semantics to deny/deflect and otherwise throw off an allegation that is a bit of a PR nightmare.
You can’t make us like you Enbridge. You might as well save your money for cleaning up another god-damn spill the right way, the first time.
I have no illusions left to shatter.
The last one was effectively killed this afternoon,right around the time I received a reply from Wayne Moriarty, Editor-in-chief of The Province regarding the removal of Dan Murphy’s animation from the entire Canada.com network.
Wayne said quite simply that Enbridge had complained about the ‘misappropriation’ of their ad, and in this case he agreed with them, because the materials were not theirs. Wayne invited me to speak further with him tomorrow between noon and four, but I decided not to, after seeing this comment he gave to another site today, backofthebook.ca :
“Wayne Moriarty, The Province‘s Editor-in-Chief, says the animation was removed at the request of Enbridge “because it contains copyrighted material.” He admits that use of the material might be protected under fair use laws, but says the newspaper chose not to pursue the matter. He points out that The Province has run editorials critical of the pipeline, and insists that the decision to pull the satire has nothing to do with the $5 million campaign, which is running in his paper and The Vancouver Sun, both of which are owned by The Pacific Newspaper Group, among many other media outlets.
Moriarty denies a rumour that Murphy has been fired because of the cartoon. Murphy was not available for comment.”
Fair comment has been the hallmark of free speech for writers, journalists, artists and others to defend their opinions,commentary and art. Without it, we would be a society of darkness, for sharing of the aforementioned would likely result in timely and costly litigation of which not many would deem worthy of tackling.
But Dan Murphy did. He created and shared and I believe he did so rightly under fair comment and fair use laws. And as Wayne Moriarty mentioned to backofthepage.ca, they could have,may have pursued it, but chose not to – a black mark in my eye on the paper, and on freedom of the press.
This is what I wrote back to Wayne, upon hearing of his decision to side with Enbridge:
“Thank you for your email and I appreciate your response, although I am surprised you agreed with misappropriation of their ad.I do think Dan pushed the envelope, but rightly so and that it is fair comment despite the materials not being the property of Postmedia.
In this case, the advertisement is being vigorously circulated in an aggressive ad campaign nationwide,is well within the public domain, and concerning an issue of national significance that has far-reaching implications on economic, social and environmental levels. The ads are representing a contentious proposal that is currently before an environmental review and public consultation process that has already garnered plentiful criticism. It must be argued that the ads also present a highly greenwashed version of what pipelines represent, in particular of the three recent spills reported in past weeks. For this reason, I am surprised that you would not side with the right and defence of fair comment on a matter of public interest, using materials in the public realm, being produced to alter public perception.
I strongly see Dan’s animation as an opinion expressed through artistic commentary, that is fair, on a matter of public interest on a national level. I was very surprised to see it taken down.
Did Enbridge threaten legal action if it was not removed ? If there was a concern about the use of Enbridge’s advertisement within his animation, why was it approved for the site in the first place? “
As mentioned above, I doubt I will call Wayne back tomorrow. I see the writing on the wall, I am angry an editor would not choose to defend one of his best talents, in my opinion, on one of the best satires I’ve seen in a long time. Dan produces many, each a work of art, and a scathing commentary on his target.
I believe Dan’s work would have been well worth a defence with the fair dealing( fair use) of Canada’s copyright act, as satire. His work should also be defendable with fair comment, which ‘Gatley on Libel and Slander’ define as :
“… a defence to an action of libel or slander that the words complained of are fair comment on a matter of public interest. The right of fair comment is one of the fundamental rights of free speech and writing .. and it is of vital importance to the rule of law on which we depend for our personal freedom. The right is a bulwark of free speech….
“There are matters on which the public has a legitimate interest or with which it is legitimately concerned and on such matters, it is desirable that all should be able to comment freely and even harshly, so long as they do so honestly and without malice.”
But let’s move onto Enbridge,because when the chips are down, these guys are going to drop the sickly sweet,bucolic ad campaign that reads like an environmental version of Hansel and Gretel, and play hardball. It’s all nice when the public is looking, but behind the scenes I have no doubt there will be slapp suits and other diversionary tactics used to silence those bringing truth forward, and those who mock the beauty of pipelines that Enbridge woefully fails to create… even with dreamy pastel ad campaigns.
I think they saw Dan’s animation, saw how effective it was at tearing their little bo peep and a pipeline ad down to reality and shortly afterwards it was gone. Fair comment wasn’t going to help then so they took the copyright route.
If Enbridge decides that they are going to go after every single person who is posting something they don’t like, if they want to tear down freedom of expression,fair comment and fair use to bully them into silence kindasortareally like the federal government has done with scientists and park employees and anyone else who is criticizing them… then bring it on.
Two can play hardball. In fact there is an entire team of British Columbians lining up to bat…
See the initial post and videos here, https://lailayuile.com/2012/06/22/dan-murphy-rocked-it-out-again-this-time-on-enbridge/
Want to join the conversation and have an End-bridge Banner of your own? The wonderful woman who created this banner that now graces the top of my site is Michelle Murphy, a Vancouver Island resident and a professional graphics designer. She has teamed up with another fabulous gal who created an automatic meme generator that allows you to add your own personal ending to the Enbridge banner, to express what it means to you! Head on over to this link and have fun!! http://www.quickmeme.com/meme/3pv8bn/