The Department of Homeland Security and National Security Agency threatened to sue a novelty store owner who sells "Department of Homeland Stupidity" coffee cups and T-shirts with the slogan: "The NSA: The only part of government that actually listens."
In response, Dan McCall sued the NSA and DHS on constitutional grounds, in Federal Court.
McCall operates the website LibertyManiacs.com. He has (nonparty) Zazzle.com -which prints images provided by customers onto products – print his images onto the items he sells.
McCall has a "virtual storefront" on the Zazzle website, and his own website redirects traffic to Zazzle "so that people wishing to express their own opinions by purchasing and displaying these items may easily do so," McCall says in the complaint.
But in 2011, the DHS and NSA sent a cease-and-desist order to Zazzle, claiming that McCall's parody images violated laws against the use, mutilation, alteration or impersonation of government seals.
Both agencies threatened to take legal action against Zazzle if it did not remove the offending products from its website, McCall says in his lawsuit.
"In response to the threatening communications from NSA and DHS raising intellectual property claims, Zazzle removed the NSA Spying Parody, the NSA Listens Parody, and the Homeland Stupidity Parody from McCall's Zazzle store," McCall says in the complaint.
McCall still displays the items on his own website, next to the words: "Get the T-shirts the NSA & DHS Don't Want You to Wear!"
The products are no longer available through Zazzle, but are still being sold through CafePress, another online store, according to McCall's libertymaniacs.com site.
McCall says he has been selling his parody items for years. One of his designs bears the NSA's official seal with the words "Spying on You Since 1952" below it.
Another modifies the NSA logo to state: "Peeping While You're Sleeping," with the slogan: "The NSA: The only part of government that actually listens."
A third design replaces the name of the DHS in its altered official seal with the name "Department of Homeland Stupidity."
In his 8-page lawsuit, McCall claims that his "use of images of the NSA and DHS seals, whether unaltered but in combination with critical text, or altered in parodic form, did not create any likelihood of confusion about the source or sponsorship of the materials on which they were available to be printed. No reasonable viewer is likely to believe that any of the materials is affiliated with or sponsored by defendants. Nor were the seals affixed to the items to be sold with any fraudulent intent."
McCall claims his images make fair use of the NSA and DHS seals "to identify federal government agencies as the subject of criticism," and are protected by the First Amendment.
And he claims it's unconstitutional for the government to forbid him from displaying and selling his parodies to "customers who want to display the items to express their own criticisms of NSA and DHS."
He seeks declaratory judgment.
He is represented by Paul Alan Levy with the Public Citizen Litigation Group.
The NSA and DHS did not immediately respond to requests for comment.
Presumably, however, the NSA has the requests on record.
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