Lawsuit

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DANIEL TAUB

Staff Reporter

What’s a fast-talking ham sandwich doing in the middle of what could be a precedent-setting copyright infringement case involving the logs of Web-site visitors?

Tabloid News Services Inc., which runs the popular Tabloid.net Web site, is suing the Richards Group, one of the largest independently owned advertising agencies in the country, for using a ham sandwich in commercials for the Florida Department of Citrus.

Tabloid News claims that the character bears too strong a resemblance to a talking ham sandwich that appeared on Tabloid.net for it to be a coincidence.

Under existing law, material posted on World Wide Web pages has the same protection under copyright law as films, books, compact discs and magazine articles. But one of the hardest parts of any copyright infringement suit is showing the defendant had access to the allegedly purloined material.

Such access is hard to prove when it comes to the Web because there are millions of sites, and it is difficult to demonstrate that an individual had knowledge of a particular page. Not so in this case, according to the lawsuit.

Ken Layne, co-founder of Tabloid.net, who edits the online newspaper from his home in Los Feliz, claims that his site was accessed at least three times from three different computers at The Richard Group’s offices between May 5, 1998 and the first week of August 1998.

“The fact that it was done on the Internet doesn’t detract from (the case) or add to it, except you have this interesting element of being able to demonstrate access,” said Robert Berliner, a partner in Fulbright & Jaworski LLP’s intellectual property group in downtown L.A.

Berliner and Jon Pfeiffer, a partner at Bryan Cave LLP who briefly worked on the Tabloid.net case, believe it would be the first time Internet access logs are being used as evidence in a copyright case.

Most operators of commercial Web sites keep logs of online visitors often to obtain demographic information on their customers. In the case of Tabloid.net, the log was not used for such purposes, but was never deleted, Layne said.

“It was sort of a bonus that we even had these from so long ago, because there’s really no reason to keep these things forever and ever,” he said.

The talking ham sandwich character was featured in a noir-style fiction series, “Vodka City,” which first appeared on Tabloid.net in 1997. The series and character were created by Layne.

According to the lawsuit, filed last month in U.S. District Court in San Francisco, Layne’s talking ham sandwich “consists of ham, lettuce and tomatoes between sliced bread. The sandwich’s most notable feature is movable green olive eyes mounted on toothpicks.”

Richard Group’s talking ham sandwich, which first started running in national TV commercials in September 1998, also has movable green olive eyes mounted on toothpicks. Both sandwiches speak with tough-guy, New York-style accents and impart advice to unsuspecting humans.

“The one and only difference is that the ham sandwich in the orange juice commercials is trying to give advice about orange juice, and the ham sandwich in my stories is trying to give advice about solving crimes,” Layne said.

Stuart Friedel, an attorney representing the Richards Group, would not comment at length about the lawsuit, but said, “We’re going to defend it very, very aggressively We’re looking at all our legal options as to what we’re going to do.”

No dollar amount has been attached to the lawsuit, but Tabloid News will likely go after the $20 million the Florida Department of Citrus paid The Richards Group to create the campaign.