The Long Bow documentary film group has asked a state superior court to throw out a lawsuit charging that its use of the website meta tag "Jenzabar" on some of its pages represented trademark infringement against an educational software company with that name. Meta tags are HTML code designed to direct searchers to a webpage.

The suit is "preposterous," Public Citizen attorney Paul Allen Levy declared in an appeal to Massachusetts superior court filed on Tuesday. "The filmmakers' use of Jenzabar's name as a keyword meta tag on their informational webpages about Jenzabar is far beyond the concern of trademark law," Levy insisted. "This is a frivolous lawsuit meant to censor the examination of a historic event."

The historical event in question was the Chinese government's violent suppression of demonstrators in Tiananmen Square, twenty years ago. The upheaval is remembered in Long Bow's film The Gate of Heavenly Peace, shown on the PBS Frontline series. But one of the participants in the uprising, Jenzabar founder Ling Chai, says that the film distorts her role in the crisis.

The documentary suggests that "the actions of radical protesters [herself prominent among them] undermined moderates in the government," she complained in her trademark suit against Long Bow, filed in 2007. Long Bow's producers were "openly critical of Chai's conduct as a student leader" and "misrepresented aspects of her involvement in the Protests," she bitterly insists.

Since a defamation suit against Long Bow has failed, Chai is now going after the site's HTML meta tags—one in particular.

Monopolizing loudspeakers

One of the biggest hazards that a documentary film team faces is that some of the real life characters in their film will actively hate the final product. The hotter the issue, the more passionately key figures in the story will want to guard their public or self-image. If they think that the final release challenges that image, relations between the producers and the subject can go south very fast.

Nominated for the Nobel Peace Prize, Ling Chai is remembered as one of the heroes of the Tiananmen upheaval—but not to everyone. A college psychology student at the time, Ling quickly established herself as a militant force during the crisis, the public mourning of a deceased Chinese anti-corruption official that effectively became the center of a revolt against the government.

With troops and tanks ready to step in, some students at the Tiananmen pro-democracy sit-in counseled strategic retreat, but Heavenly Peace portrays Chai as rigidly refusing to concede this, calling these moderates "opportunists" and "traitors."

"Thus, the film sets up its central irony," one film reviewer noted in 1996 when the documentary came out, "having come to power through undemocratic means, the student leaders stifled the dissemination of opposing views by monopolizing the loudspeakers, even as the Communist leaders monopolized the national press."

How do meta tags fit into this? The tags are HTML code usually placed at the top of webpages. Developers debate their usefulness today, but at their inception meta tags were designed to make it easier for search engines to locate a site by allowing coders to include various key words in the "meta" line—e.g. "Jenzabar," the consulting company that Chai established after fleeing to the United States. Long Bow put that word into tags on some of its pages.

Long Bow's filmmakers are "motivated by ill-will, their sympathy for officials in the Communist government of China, and a desire to discredit Chai," her suit continues, and it says they are publishing "half-truths and falsehoods" on their website. "In an effort to attract attention to the Site, and disseminate its disparaging content as widely as possible, Long Bow is using the JENZABAR Marks as metatags embedded within the Site."

The complaint charges the production group with trademark infringement and dilution, insisting that the tag word made the film company's site popular among Google searchers looking for Jenzabar.

A truthful statement

Public Citizen's motion for summary judgment responds that this is all nonsense. Jenzabar has no proof that the meta tags Long Bow used on a few websites strengthened their position with Google. Even if they affected Google's search rankings, "The First Amendment protects the right to make the truthful statement that a particular Web page contains information about Jenzabar," attorney Levy insists.

And Public Citizen contends that the Long Bow pages that used the tags contained "purely non-commercial speech reporting information and expressing opinions about Jenzabar and its principals." Thus they enjoy free speech protections not usually extended to commercial trademarks.

Nor did the tags deceive or confuse consumers about Jenzabar's services—one of the purposes of trademark infringement law being to prevent that. The pages with these tags included articles about Jenzabar's various legal disputes and its "long-time strategy of exploiting Chai’s unique biography (as a student leader at Tiananmen Square)" in its marketing campaigns. "No reasonable consumer," Levy continues, "could read this information and be confused about whether Jenzabar created, sponsored, or approved of Long Bow’s goods or services or is affiliated in any way with Long Bow."

Ling Chai understandably disagrees with Long Bow's assessment of her role in the Tiananmen crisis and of her work today, but her trademark action against the company could strengthen the perception that her passion for free speech begins and ends with her own—a megaphone hog then and a meta tag bully now.

Hopefully this lawsuit will be dealt with soon. It's yet another example, however, of the nasty and unusual legal risks that filmmakers take in their bid to document living history.