Penny Arcade vs. American Greetings 496
ferrocene writes "Penny Arcade's American Mcgee/Strawberry Shortcake spoof posted last Monday was pulled because someone at American Greetings got wind of it and set their lawyers on them. PA's forums are abuzz with activity. I'm pro-funny, myself."
Re:How about it... (Score:5, Informative)
I found a copy with Google too: http://www.spymac.com/gallery/showphoto.php?photo
Click the image to enlarge it.
Re:How about it... (Score:5, Informative)
Jeez... it took all of a minute searching through the forum (linked in the story) to find it. And it turned out to be an AOhelLer who managed to post it correctly, rather than an IMG SRC= tag back to the original.
Mirror that won't get slashdotted: (Score:3, Informative)
Re:Isn't it protected? (Score:5, Informative)
The guts of the case: a guy made a "political statement" and did a "Mutant of Omaha" design, offering "Nuclear Holocaust Insurance" (it was the Cold War, kiddies, and Reagan was in the White House).
In addition, the creator parodied the MoO Indian head trademark and was selling these designs on T-shirts, caps and coffee mugs. The District Court for the District of Nebraska found in favour of MoO, and the Eighth Circuit affirmed.
If there is nothing for sale, First Amendment arguments have a much stronger considerations. Even pure political messages don't carry enough weight. But parody is not a guarantee of protection, despite a long tradition of it in American society.
woof.
There's a boycott (Score:5, Informative)
Let's show 'em what happens when slashdot readers get wind of something like this.
Re:I'm pro funny too... (Score:5, Informative)
Quoth Gabe here [penny-arcade.com]:
Re:Fair Use (Score:5, Informative)
We did, the Aqua "Barbie Girl" case recently confirmed fair use. The American Greetings Company knew they were wrong in sending this out, but they didn't care. They figured that with a little intimidation, they would have a good chance of convincing the PA people to yank the pic. If it didn't work, then what have they lost?
This is why it's important to make these companies realize that sending out C&D letters to people when you have no legal justification will result in bad publicity. Furthermore, they need to be shown that this bad publicity will do more harm to them than the original work.
Petition to sign (Score:4, Informative)
Re:There's a boycott (Score:4, Informative)
Re:YRO? (Score:4, Informative)
A) They are not being 'charged' with anything. Read the article.
B) Even if they were, it could not be slander/libel. Nothing was said about American Greetings, it's products, or it's representatives.
What was done was a parody of one of their products. The C&D (sad that those are so common everyone will know what I mean) was about trademark infringement. The first amendment has long been interpreted in this country to protect the rights of parody and satire in almost every case. "Our rights are being trampled" because once again a giant corp. is trying to sling around their weight in clear defience of the law.
Re:Reminiscent of the Barbie Girl fuss (Score:5, Informative)
You're referring to Mattel Inc. v. MCA Records Inc., 01-633, which SCOTUS refused to hear, letting stand the Ninth U.S. Circuit Court of Appeals ruling that said there was no confusion.
Mattel's argument was that MCA violated Mattel's Barbie trademark by using the name both in the title and content of the song. More importantly, Mattel alleged that Barbie fans would be confused and believe that the song was authorized by Mattel.
It got more interesting when Mattel said about MCA, "It's akin to a bank robber handing a note of apology to a teller during a heist." So MCA sued Mattel for defamation. The same judge told MCA to forget it, because people were just as unlikely to take "heist" and "robbery" as a direct accusation of such activities by MCA against Mattel, just as nobody was about to believe that Mattel would have authorised the lyrics, "I'm a blond bimbo girl in a fantasy world/Dress me up, make it tight, I'm your dolly."
Mattel tried to infringe on MCA's First Amendment rights to distribute a song and MCA tried to infringe on Mattel's First Amendment rights to free speech. Neat, huh?
But in this American Greetings case, we don't have parody of the character itself, we have a parody using a known, trademarked character in situ in a way that may well be easily confused.
I don't agree with the demand to take down the graphic, and I think American Greetings would have been better served asking Penny Arcade to simply add a "This is a parody and not sanctioned by American Greetings, owners of the Strawberry Shortcake trademark and likeness" disclaimer. That's their lawyers' choice to make, though, and not mine.
woof.
Re:I don't understand (Score:1, Informative)
Re:Hope the lawsuit gets thrown out, if there is o (Score:5, Informative)
To get the fair-use exemption to copyright law, your work must not just be a parody- it must be a parody of the material you are infringing.
In this case, Penny Arcade used some kind of "Strawberry Shortcake" copyrighted material to create a parody of American McGee's videogame development preferences (as seen here [ea.com]).
Since the parody doesn't make any critical commentary about "Strawberry Shortcake", it has no legal justification to use those names or images.
The famous recent case on this subject [virtualrecordings.com] was linked to [tklaw.com] (pdf) by Penny-Arcade. In that case, a parody called "The Cat NOT in the Cat" was banned for using images from a book by Theodor Geisel to make a comment on the conduct of the Orenthal Simpsom murder trial. Because the materials he was borrowing were neither positively nor negatively commented on by his work, he was not allowed to publish the parody.
Re:Fair Use (Score:5, Informative)
You are combining unrelated aspects of Intellectual Property law. "Fair use" as a concept applies to copyright, and "confusion in the marketplace" is a concern only for trademarks.
For a particular parody to be legal to publish, it must separately pass both trademark and copyright tests.
Surviving the trademark test is easy if you don't use terms that have been registered as trademarks. Changing the name enough to be unconfusing, like "WacDanalds", will work, and there are other ways too.
To get by the copyright test, you either must not be using any copyrighted material (unlikely when paroding corporate works, but if you're targeting an individual or a governmental organization, they may not own copyrights), or you must meet the "fair use" exception. Fair use permits you to make limited violations of a copyright for the purpose of studying or critizing the material under copyright.
Since it appears that the Penny-Arcade parody critizes not "Strawberry Shortcake", but American McGee, they cannot use copyrighted "Strawberry Shortcake" images to make their point.
(I wrote a little more above [slashdot.org])
not parody (Score:5, Informative)
But enough is enough! Please don't post regarding "parody" and "fair use" if you don't know the actual legal definition [chillingeffects.org].
The bottom line is that this cartoon is NOT a parody by the legal definition ("Strawberry Shortcake" IS a trademarked name) and American Greetings had every right to request that the image be pulled down.
Imagine for a moment that American Greetings had lost a court case regarding the name "Strawberry Shortcake" because it had not demonstrated that it vigorously defended its rights to that name, and that the topic was being discussed on slashdot. The first post in that forum would be "American Greetings should have protected its rights pursuant to the trademarked name. It's their own fault for not being diligent." (do some slashdot research; it shouldn't be too hard to find examples that illustrate this point)
Let's try a bit of consistency for once, instead of jumping on the anti-corporation bandwagon.
Legal Precedent is not with them.... (Score:3, Informative)
Talk to the money. (Score:5, Informative)
For example:
Spira, James C. [hws.edu]
Director and COO at American Greetings
As of 2003-01-06 Reported to own 210,000 shares of American Greetings. As of this post, his holdings are probably worth approx 2.95 million USD.
List of Officers [businessweek.com] at American Greetings
But it should be noted that currently American Greetings is in the process of changing their executives [yahoo.com], so it's unclear who would actually be responsible for these kinds of positions/acts.
Insider Trade Filings [yahoo.com] for American Greetings (Give you an idea of who's interested in making money off the stock)
Z.
Re:I don't understand (Score:1, Informative)
Re:Isn't it protected? (Score:5, Informative)
Re:Isn't it protected? (Score:3, Informative)
As far music is concerned, the Supreme Court ruled in 1995 that parodies were completely legal without royalties, etc...
This is the ruling from the case - lots of legalese, but it is precident.
http://supct.law.cornell.edu/supct/html/92-1292
Slashdoted... (Score:3, Informative)
Win2k box vs. Slashdot, Round 1:
Strawberry Shortcake Parody [wereallmadhere.com]
AOL users can be effectively slashdotted though (Score:3, Informative)
Sorry, We Can't Display That Page
This member has exceeded their bandwith for the day. Please check back after 4 am EST to access this page
Re:How about it... (Score:3, Informative)
http://pimpninja.org/img/straw.gif [pimpninja.org]
http://www.morrowind-mods.com/20030414l.jpg [morrowind-mods.com]
http://www.wereallmadhere.com/straw.gif [wereallmadhere.com]
or you can call them ;-) (Score:1, Informative)
Re:The Feenicks web browser (Score:3, Informative)
If you were making fun of something for the sake of Parody, you generally can get away with a whole lot more than you can if you are trying to sell a product using someone else's name.
On the other hand, if you are trying to do a parody of something and you out-right use the name, you tend to weaken your own defense in regards to the rights to parody something.
For instance, a fake television commercial on a comedy show about Crack A Cola is almost certainly going to walk away without incident. However, if the imaginary commercial was about Coke-A-Cola there would be some lawyers making phone calls, I promise you.