It seems as if Barstool Sports hasn’t been able to solve its pesky plagiarism problem.
A little over a month after the comedy site was busted for pilfering a video from a comedian and passing it off as their own work—in addition to the 11 times the site has been sued for copyright violations over the last three years—Barstool confessed to publishing intellectual property stolen from yet another content creator without permission or attribution.
This time, at least, they didn’t bombard a content creator with messages trying to coerce them into rescinding a DMCA takedown notice. Instead, they stopped responding to emails and the creator filed a DMCA takedown request on Saturday.
The theft in question was aired on the March 26 installment of Barstool’s daily Snapchat program. The show features Barstool bloggers and personalities staring directly into the camera, quickly spitting out a brief recap of the previous day’s viral stories, intermixed with screenshots of blogs, short video clips, and other imagery.
During the 17th episode of what Barstool is calling its 10th season—it was launched back in June 2018, per Barstool—blogger and radio host John Feitelberg recounted the story of a homeless man who claimed he had been stabbed while he slept at the Broadway-Lafayette subway station in Manhattan. “We don’t believe in victim blaming... unless you sleep on the subway,” Feitelberg joked. (The alleged victim was not found asleep on a subway car, but rather on a bench in the station, contra both the Snapchat broadcast and Barstool’s aggregated blog.)
Amidst images of snoozing subway riders and Feitelberg’s commentary, Barstool spliced in a GIF featuring a blue furry monster wielding an axe as if it was about to chop off someone’s leg. They did so evidently without spending any time to determine its origin.
Ben Rubin, the owner and creative director of the Mint Farm, a creative marketing studio located in Brooklyn, brought the creature to life in 2011. In social media posts, it can be found crammed into Photoshopped images from the New York City subway, neatly tucked between passengers and whatnot.
Two days after the Snapchat program aired, people began messaging Rubin via his Instagram account and informing him that his work had been swiped. Rubin was stunned. After a bit of googling, he discovered that this isn’t the first time Barstool has been accused of theft. “Their business is built on stealing other people’s IP,” he said when reached by phone. “And that’s not a business; it’s like a criminal enterprise.”
Before this, Rubin hadn’t ever heard of Barstool—but mentioned the site to his 15-year-old son. “He was like, ‘Oh yeah, Barstool Sports. They’re huge!’ Rubin recalled his son telling him. “He’s, I guess, in their demo.” As to whether he wanted his son to continue consuming Barstool’s content, Rubin said no. It required a brief sit-down, but “we already had that conversation,” he said.
So Rubin reached out to Barstool on March 28, emailing video proof of its use on their Snapchat account along with a link to the source from which the GIF was pulled: an Instagram video he made and posted in October 2015. In the email, which Rubin shared with The Daily Beast, he wrote:
I charge a premium for the animation I produce for television networks. It’s not free.
Instead of me filing a DMCA violation with Snapchat, and any other platforms this was published on, or insisting on a cash payment, I was wondering if you are interested in settling this easily and amicably.
I would like to simply barter some posts on your feeds in exchange for the use of that clip.
Barstool did not respond. Five days later, on the morning of April 2nd, Rubin sent a follow-up email, promising that if he didn’t hear back, he’d be filing a DMCA takedown notice by the end of business. That, apparently, got someone’s attention.
Last December, Miel Bredouw, a 29-year-old Los Angeles-based comic, filed a takedown request after Barstool Sports took and re-posted a video she made singing the Three 6 Mafia song “Slob on My Knob” as if it were the Christmas classic “Carol of the Bells” on its main Twitter account. For a month, Barstool’s lawyer and its various accounts inundated her with emails and social-media messages, promising all manner of remunerations—including a $50 gift certificate to its online store—all to avoid being hit with another DMCA violation.
Though Twitter has never publicly disclosed how many times someone can flout its copyright policies before facing suspension or deletion, Deadspin reported that an account only gets three strikes. After Bredoux went public and amidst a swarm of criticism, Barstool deleted most of its prior social media history, perhaps due to the fact that there was no way to determine what percentage of their posts hadn’t been stolen.
This time, it only took a few hours for Barstool to write Rubin back. On the afternoon of April 2nd, an unnamed individual representing the Barstool Social Team sent him an email, which was shared with The Daily Beast. Also cc’d on the response was Paul Gulczynski, a member of Barstool’s sales team who wore blackface for a Halloween event a decade ago. (The social team and Gulczynski did not respond to an emailed request for comment.)
In the email, Barstool apologized to Rubin, deleted the segment about the ostensibly stabbed subway rider, and copped to the crime. “We obtained the video off of [G]iphy,” the email read.
(The GIF in question can be found by searching “subway stab” on Giphy, which includes a link to the GIF’s origin—a post on the r/gifs subreddit dated September 2016. To be clear: if someone else rejiggers content into a GIF, Barstool or any other entity still cannot use it without providing credit, compensation or both.)
Unlike Bredouw’s video, when Barstool swore that someone else had sent it to them and claimed ownership, in this case, one of the site’s employees found the GIF, either didn’t think or didn’t know to check who might have created it, and went ahead and used it anyway.
“They admitted in writing, ‘We went out and took it,’’’ said Rubin. “That’s like IP 101. Everyone in the media should know that’s not OK.”
To compensate Rubin, Barstool offered to promote his work:
Based on your email you were interested in social promotion. How about we repost the video to our main Instagram account which has over 6M followers. We would also provide a call to action to our audience to go follow @subwaydoodle for more.
Does that work for you?
Again sorry for the confusion. We appreciate you reaching out directly to work with us on this.
Thanks,
Barstool Social Team
Rubin passed. As a counteroffer, he proposed that Barstool post content he selected on the site’s Facebook, Instagram, and Snapchat accounts once per week for a year. Barstool did not respond. Two more emails were sent to the Social Media Team and Gulcynski on April 9th and April 12th. Again, Barstool did not respond.
Why? “I guess they have a sense of entitlement that if they just ignore me I’ll go away,” he speculated.
Saturday afternoon, Rubin filed a DMCA takedown notice with Snapchat. In a follow-up email, Rubin said he did so not just because he was personally offended and potentially harmed by Barstool’s actions.
“This isn’t about me,” he said. “This is about calling out Barstool Sports for their hypocrisy regarding their relentless illegal business practices. Content creators, big and small, should be fairly compensated for their work.”
Dave Portnoy, founder of Barstool Sports
John Parra/GettyAsked if requesting a year’s worth of posts as compensation could be viewed as exorbitant, Rubin disagreed. “That costs them absolutely nothing,” he said. “It’s not like I came to them and said, ‘Give me money,’ or threatened any kind of legal action.”
If they felt his opening bid was beyond the pale, Rubin would have considered any number of counteroffers, but none ever arrived. Moreover, even if Barstool had said yes, the return wouldn’t have amounted to much.
“I know from experience that that’s worthless,” Rubin said. The other day, an account with 5.1 million followers posted his work and properly credited him but it only resulted in “a hundred new followers,” he estimated. Given that Instagram and all of his social media accounts aren’t his primary source of income, “That’s worthless to me.”
Amidst his online research into Barstool, Rubin came across an interview Barstool CEO Erika Nardini gave to Fast Company in March. (Nardini did not respond to an emailed request for comment, nor did Mike Kerns, The Chernin Group’s head of digital.) There, Nardini expounded on the bulked-up policies and procedures which were installed to prevent intellectual property violations from happening moving forward, and fervently denied that Barstool functioned in a manner similar to FuckJerry.
When pressed if she wanted to apologize to Bredouw and anyone else who might have been wronged by Barstool, inadvertently or otherwise, Nardini demurred. “What exactly am I apologizing for?” she said.
It’s unclear which aspect of Barstool Nardini may have been specifically referring to (or if she was referencing the swiped GIF at all), but two days after Barstool’s sole email to Rubin, Nardini posted this tweet describing the inner workings of the company she runs:
