Someone spent a lot of time and money on this fake-news project — and the Washington Post is in the “darkness” on its origin. Earlier today, copies of what appeared to be the Post and dated May 1st, 2019 were being distributed with the headline “UNPRESIDENTED,” reporting that Donald Trump had resigned and fled the White House. The print “newspaper” was published in parallel with a website that mimics the Post as well¹, although the slogan changed from “Democracy dies in darkness” to “Democracy awakens in action.”

Every story included in the edition focuses on progressive victory over the tyrant, including one headline that noted “Fictional Washington Post eerily predicted real events.” My goodness — it even mimics the media’s self-promotion! It might very well be a satirical take on the newspaper as a “fake news” outlet too, although that would require a near-exquisite level of subtlety to grasp on the basis of the product.

Not everyone was amused by this effort. Andrew Feinberg concluded that it was “definitely not an attempt at parody, so the WaPo could sue”:

Here’s the fake news in question. pic.twitter.com/zQgyNqWUIZ

— Andrew Feinberg (@AndrewFeinberg) January 16, 2019

Needless to say, the Post wasn’t amused either:

There are fake print editions of The Washington Post being distributed around downtown DC, and we are aware of a website attempting to mimic The Post’s. They are not Post products, and we are looking into this.

— Washington Post PR (@WashPostPR) January 16, 2019

Overall, the satire is mostly remarkable just for its existence and presentation. Otherwise, the articles mainly reflect progressive wishcasting more than realistic scenarios. It’s well-produced fanfic, or maybe anti-fan fiction is a better description. If you’re a big fan of the Beltway, you might get a thrill from reading “how DC stepped up to shut down Trump,” but that’s got to be a niche market among niche markets. Unless, of course, the point of this is to satirize the obsessed progressives and the media’s reflection of them, in which case it might be utterly brilliant.

To return to Feinberg’s point, it’s unclear how he came to such a definitive conclusion about this not being parody or satire. It seems a lot more certain that it’s intended to mock the politics of someone, whether that’s the Post and of Trump at the same time, or the Post and progressives at the same time, or just the Post on its own as “fake news.” It does not appear to be created for commercial purposes, let alone to steal readers away from the Post. There is plenty of precedent for broad definitions of parody and satire for purposes of commentary, with perhaps the most popularly known being Hustler Magazine v Falwell, which was dramatized in the film The People Vs Larry Flynt. That decision focused more on the aspect of damages to public figures, but to the extent that this parodies/satirizes the Post itself, it’s at least somewhat relevant. The logo change suggests that the Post is at least a secondary target for this parody.

Courts have also given wide latitude to parodies and satires that involve copyrights and trademarks — although with definite limits. A FindLaw analysis goes through the various precedents, including the use of Dallas Cowboy Cheerleader outfits in the porn film Debbie Does Dallas, where the producers lost the infringement lawsuit. The recent trend, however, has been to tolerate the satirists:

The much more prevalent, especially in more recent times, line of cases are those in which the court ruled in favor of the creator of the parody. In each case, the court found that the parody was strong enough to overcome the likelihood of confusion, even in those cases where the original marks were placed in an unfavorable light. In fact, one court stated that parody tends to increase public identification of the marks with the plaintiff, most likely by drawing attention to plaintiff’s brand through humor. On a related note, courts have upheld parody usage of marks, even given likelihood of confusion, on First Amendment grounds. By and large, the courts understand the importance which parody and satire play in our society and are willing to safeguard it, even when it is not merely for social commentary, but also for commercial purposes. Just a small sample of the plethora of cases utilizing this rationale will suffice. One of the earliest cases involves the publishing of a poster showing an obviously pregnant very young woman wearing a Girl Scout uniform with the slogan “Be Prepared” written underneath. The court stated that no evidence had been shown supporting an allegation of confusion, or that anyone actually believed that the Girl Scouts published or sponsored the poster. Failure to prove likelihood of confusion caused courts to protect parodists in the area of a Wacky Packages product spoof, an L.L. Bean look-alike catalog of sexual products in an adult magazine, a sophisticated spoof of students’ resource Cliff Notes parodying “savvy, urban novels … of post-adolescent angst of the 1980’s”, perfume for dogs bearing names which played on famous designer brands, and, most recently, a movie mocking the clothing line FUBU. Each of these cases found that defendants, by the strength of their parody, had decreased the likelihood of confusion to a sufficient degree that the court did not consider such instances trademark infringement.

In this instance, with its clear political message and satirical elements, the producers of this publication are almost certainly going to fall within the precedents for tolerance. That doesn’t mean the Post can’t sue … but it seems doubtful they’d win. Unless whoever published this went through all their cash to get it on the web and the streets and can’t afford good lawyers, which certainly could be the case. But it’s not exactly a great look for a newspaper whose motto virtue-signals for free speech to be seen bullying a political satirist. Just sayin’.

So who did do this? The domain’s WHOIS data shows ownership by a “Whois Privacy Corp” based in the Bahamas. If it’s an activist group, they’re using an odd strategy for promoting themselves. How will they be able to collect their Foolitzer Prize² if they don’t identify themselves?

Note 1: If you wish to see the site, go to “my-washingtonpost.com”. My anti-virus software warned that it might be a phishing site, most likely because of a lack of proper certificates or the faux registration links (which I did not click). I’d prefer not to include the link just in case it’s more malicious, so be warned if you check it out.

Note 2: When I first drafted this, I thought I’d come up with “Foolitzer Prize” on my own, but I had the good sense to Google it before publication. My old friend Don Surber used it last year, and the Wikipedia-themed satire site Uncyclopedia has references going back to 2007.  Dammit.