This column is about a dispute between centerfold model Terri Welles and her former patrons at Playboy, who chose her as Playmate of the Year back in 1981 and are now suing her for using the words "Playboy" and "Playmate" on her own Web site at Terriwelles.com. Playboy's lawyers told the New York Times that Welles is violating its trademark and "hijacking Playboy's customers" by mentioning those words -- both on her pages and in the "meta tags" embedded in their coding that help some search sites catalog Web pages. Last week Welles won a round of the legal battle, but Playboy has promised to pursue its case in federal appeals court.
Simply by stating these facts in the previous paragraph, of course, I have now mentioned the word "Playboy" five times (and this sentence makes six). When we write our meta tags for this page we'll put "Playboy" and "Playmate" in there, too, since those keywords fairly describe this article's content. So if Playboy's lawyers are right, I'm now violating their rights and hijacking their customers, too. So is every other news outfit that chose to post its coverage of this dispute on the Web.
Come to think of it, if I should want to post to my personal Web site an essay about J.M. Synge's classic Irish drama "The Playboy of the Western World," it looks like I'm going to need counsel.
This is not an exaggeration, a reductio ad absurdum of Playboy's argument. Playboy doesn't dispute the truth of Welles' self-description as a former Playmate; it just doesn't like her using the Web to tell the world that fact. It claims absolute ownership of the words "Playboy" and "Playmate."
Welles isn't deceiving anyone -- unlike in a case last year, in which Playboy prevailed against a Hong Kong-based porn purveyor that had registered domains like "playboyxxx.com" and filled its pages' meta tags with multiple references to "Playboy" and its various permutations.
By comparison, Welles' approach to Web marketing is scrupulous; in fact, it looks positively demure amid the usual shenanigans of X-rated sites. Her site's meta tag keyword list ("terri, welles, playmate, playboy, model, models, semi-nudity, naked, breast, breasts, tit, tits, nipple, nipples, ass, butt") pales next to most porn sites' meta tags, which typically -- in a practice known as "spamdexing" -- contain vast lexicons of synonyms for sex organs and acts in every possible permutation. (It's easy to view any site's meta tags using a Web browser's "View source" command.)
Some observers of the case have suggested that there's a fundamental difference between simply publishing a word like "Playboy" on a Web page and placing it in a hidden meta tag, which only affects a site's placement in search-engine catalogs. But that argument doesn't jibe with reality: Meta tags aren't a universal system -- some search sites use them, some don't. What does get universally indexed is the text on Web pages. In other words, even Welles' effort to steer clear of legal trouble by publishing a disclaimer at the foot of her home page reading "This site is neither endorsed, nor sponsored by, nor affiliated with Playboy Enterprises, Inc." could cause her page to turn up on a search for "Playboy."
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Of course, virtually anyone's page could turn up on a search for "Playboy." Faced with the sheer vastness of the ever-changing Web, the search sites long ago became semi-useless when hunting for any keyword that's in heavy circulation -- like Playboy, Microsoft or Clinton. Go to, say, Excite and type in "Playboy": At the top of the list of 46,199 sites you receive you'll find "Best of Pamela Anderson," a site creatively named "Sluts-r-us," somebody's "Playboy Trading Card Showcase" and other oddities, all before the actual Playboy site turns up on the list. By now, anyone seeking the actual Playboy site knows to just try "www.playboy.com" -- and, if that fails, use a real, hand-tooled Web guide like Yahoo.
I'd have thought all this would be obvious to anyone who works in the Web business today. But to my surprise, last week on a ZDTV talk show I got into an argument with a Silicon Valley exec, who adamantly sided with Playboy and felt that Welles was simply stealing Playboy's business.
The real conflict here -- and one that no single court decision can resolve -- is between competing visions of the Web. If you think the Web is simply a "marketspace," a big mall where companies compete for "brand identity" and "mindshare," then Playboy's trademark protection makes sense. While many large corporations have sunk piles of money into making this vision of the Web a reality, vast numbers of individual people are busy pursuing a different vision -- one in which the Web is a giant communications network in which we find one another based on a shared interest, be it bottle-top collecting, Proust or Playboy Playmates.
In the latter vision, any company that tries to clamp down on use of its name is also going to stifle any chance of building an enthusiastic following across the Web. Playboy, with its history as the granddaddy of pinup magazines, is obviously less interested in exploiting the Web's potential for building new kinds of relationships than in simply protecting the gold mine of its existing brand. But any precedents Playboy might establish in court would apply across the board and could seriously harm the Web's usefulness to everyone. Even if Playboy isn't your cup of tea, there's cause for concern. Say your kid loves Lego and puts up a Web page devoted to the subject. Do you want to worry about the toy company's lawyers suing Junior for trademark infringement?
Welles told News.com that she thinks Playboy went after her because the company wanted all of its former Playmates to build their sites under the Playboy umbrella, rather than strike out on their entrepreneurial own, as she did. That seems at least plausible, since there are hundreds of other Web sites out there with "playboy" meta tags that haven't been targeted. In any case, what Playboy has achieved, mostly, is to give Welles a lot of free publicity for her site.
The high-volume, high-competition world of porn sites is, as we've reported here before, precisely where the future of Web marketing is getting hammered out. So far in the Welles case, the courts have sensibly ruled that the principle of "fair use" can apply to meta tags and Web navigation tools as well as Web content.
But Playboy can afford lots of lawyers and appeals, and there's no guarantee that its proprietary approach to words on the Web won't prevail. And if the law ends up treating the Web as one big business directory, then we shouldn't be surprised if the medium ends up becoming as scintillating as a volume of the Yellow Pages.