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It's funny. Laugh. Your Rights Online

Penny Arcade vs. American Greetings Revisited 601

Posted by CmdrTaco from the your-right-to-parody-is-void dept.
Jojo writes "After American Greetings got some lawyers to bring down a Penny Arcade strip (M i r r o r) last week, PA is now striking back.. IANAL, but I fear their latest strip might get them into real trouble this time." As always, PA cracks me up, but these are scary events. The banned strip is clearly a work of parody, which I believe is still legal in this country, unless that too changed recently.
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Penny Arcade vs. American Greetings Revisited More

Penny Arcade vs. American Greetings Revisited

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  • Admirable pluck... (Score:5, Funny)

    by TopShelf ( 92521 ) on Monday April 28, 2003 @02:59PM (#5827204) Homepage Journal
    At least they have a smile on their face as they get bent over...

  • Lawsuit (Score:2, Funny)

    by obotics ( 592176 )
    How much will they sue them for? A penny?

    hahahah /lame

  • Clearly Parody, But.... (Score:5, Insightful)

    by John_Booty ( 149925 ) <johnbooty@booty p r o j e c t . o rg> on Monday April 28, 2003 @03:00PM (#5827224) Homepage
    The banned strip is clearly a work of parody, which I believe is still legal in this country

    It's clearly a parody, and would certainly hold up in court (IANAL), but the problem is that the PA guys don't have money to spend defending themselves in court. So it's another case of the "big guy" successfully squashing the "little guy" with the thread of a baseless lawsuit, because the cost of fighting is beyond the little guy's reach.

    • Re:Clearly Parody, But.... (Score:5, Insightful)

      by nuintari ( 47926 ) on Monday April 28, 2003 @03:05PM (#5827276) Homepage
      This is an example of where you bite the bullet, pay for the lawyer, and proceed to file a counter suit for personal damages, ie, the cost fo hiring a lawyer to defend yourself from a baseless lawsuit. You get your money back, and then some.

      But most people will just back down, Am Greets is counting on it. Hope the PA guys get some backbone.

      • Re:Clearly Parody, But.... (Score:5, Interesting)

        by John_Booty ( 149925 ) <johnbooty@booty p r o j e c t . o rg> on Monday April 28, 2003 @03:13PM (#5827417) Homepage
        This is an example of where you bite the bullet, pay for the lawyer, and proceed to file a counter suit for personal damages, ie, the cost fo hiring a lawyer to defend yourself from a baseless lawsuit. You get your money back, and then some. But most people will just back down, Am Greets is counting on it. Hope the PA guys get some backbone.

        Just a few problems here...
        1. Even if they successfully defend themselves against AmGreet, I don't see how they'd get much compensation for damages... legal costs aside, how much money have they lost here?
        2. You... do have a passing familiarity with the American legal system, right? You know how lawyers cost a LOT of money, and trials take a LONG TIME and get appealed a lot? And you know how you don't get paid until the end, even if you win? I don't know that the PA guys have tens of thousands of dollars sitting around that they don't need for the next couple of years, when the court stuff would be finished and they'd possibly get paid.
        3. If PA somehow lost, they might be totally bankrupt. So they have to weigh the very small potential gain agsint the very large potential losses they'd face.
        Truthfully, when it comes to having "backbone", probably the most effective way to get back at AmGreet is to make them look stupid and maybe encourage a boycott and letter-writing campaign. PA has thousands of readers; I don't know that a PA-reader boycott of AG would really make a dent in their bottom line (in face I'm sure it wouldn't) but if they see it's costing them money and letters start pouring in, perhaps AmGreet will back down.

        • Re:Clearly Parody, But.... (Score:5, Insightful)

          by ninewands ( 105734 ) on Monday April 28, 2003 @03:22PM (#5827570)
          Quote:
          Just a few problems here...

          1. Even if they successfully defend themselves against AmGreet, I don't see how they'd get much compensation for damages... legal costs aside, how much money have they lost here?
          No problem ... you respond to their petition with an answer, followed immediately by a motion for summary judgment and a motion for sanctions for bringing a frivolous lawsuit. In a matter of THIS nature, there is a stack of caselaw about 1.5 inches high that I will assure you any lawyer who has passed the Bar Exam is VERY familiar with, and ALL of those cases say that parody falls within the realm of free speech.

          2. You... do have a passing familiarity with the American legal system, right? You know how lawyers cost a LOT of money, and trials take a LONG TIME and get appealed a lot? And you know how you don't get paid until the end, even if you win? I don't know that the PA guys have tens of thousands of dollars sitting around that they don't need for the next couple of years, when the court stuff would be finished and they'd possibly get paid.

          I don't know if the author of the parent to your post does or not, but I can assure you I do, and if I were still practicing law, I'd take the representation for court costs + awarded sanctions because I can also assure that sanctions are a GIVEN in a case of this nature.

          Just my $0.02

          • Fortunately you are not a lawyer (Score:5, Insightful)

            by xenocide2 ( 231786 ) on Monday April 28, 2003 @04:03PM (#5828163) Homepage
            Because if you were, then you'd be taking far more time to make yourself familiar with the particulars of the case. Indeed the work was a parody. However American Greeting does not represent American McGee, the video game developer who is/was being parodied. American Greeting takes issue with their Stawberry Shortcake character. Mike and Jerry have a far more difficult case to argue if they want to keep their picture online. Notably, McGee has only been trolling the works of the public domain, specifically, Alice in Wonderland and The Wizard of Oz.

            The question isn't about parody and fair use, but whether Strawberry was parodied. I personally don't see it in the work. In fact, if I were PA I'd simply remove the cartoon and revise it such that a far better case could be made that it parodies both McGee and whatever character that best adopts to these legal requirements.

            Mike and Jerry have been fairly quiet about the particulars of it themselves, having been wisely told by legal advisors with more wisedom than yourself, or at least more current experience. The only thing they do say is that it isn't very clear -cut, and they're right.
          • In a matter of THIS nature, there is a stack of caselaw about 1.5 inches high that I will assure you any lawyer who has passed the Bar Exam is VERY familiar with, and ALL of those cases say that parody falls within the realm of free speech.

            Really? They don't have parody doctrine on the bar in my state, and I can't think of many law schools which require a First Amendment course.
            • Mebbe their all mediocre...

              There are only 3 states that don't use the national standardized bar exam. Among other things, this exam includes a section on constitutional law.

              So, a required constitional law class would actually be highly sensible (along with torts, civil procedure & such).

              BTW, Ohio isn't one of the 3.

    • Re:Clearly Parody, But.... (Score:5, Interesting)

      by neo ( 4625 ) on Monday April 28, 2003 @03:15PM (#5827463)
      Uh, I've got some money ($2.50). And I hate corporations. PA is just one paypal button away from a legal defense fund of massive proportions.

    • Re:Clearly Parody, But.... (Score:5, Insightful)

      by goon america ( 536413 ) on Monday April 28, 2003 @03:18PM (#5827500) Homepage Journal
      There are two elements to this story, I think:

      1. The C & D letter was probably just a empty threat. Would they really take them to court over that?

      2. PA's response to this pufferfish threat was to do something that really could get them in trouble.

      The PA guys stumbled on both points here. There were clearly more sensible ways to deal with this problem.

    • How is it clearly a parody of American Greetings' trademarks? It parodied American McGee, but had no wit nor criticism of American Greetings itself.

      IANALE (either), but there is some basic test to parody, which is that you can't use other people's trademarks or copyrights in your parody if you aren't targeting them.

  • American Greetings.. (Score:4, Funny)

    by grub ( 11606 ) <slashdot@grub.net> on Monday April 28, 2003 @03:01PM (#5827226) Homepage Journal

    "American Greetings.. you will never find a more wretched hive of scum and villainy." sorry.. watched Star Wars last night.

  • Who was the target? (Score:5, Informative)

    by IIRCAFAIKIANAL ( 572786 ) on Monday April 28, 2003 @03:01PM (#5827235) Journal
    The problem is that they were parodying American McGee by using a registered trademark. They clearly weren't parodying Strawberry Shortcake - if they were, it would be more clear cut. Not that we wouldn't see a C&D letter anyways...

    For the record though, I love PA and hope they make it through ok. And you just have to respect em for making a stink even if they did pull the offending strip originally. They're as subtle as a heart attack :)
    • Is it totally unacceptable to parody *several* things simultaneously? That seems a bit short sighted, no?
    • They clearly weren't parodying Strawberry Shortcake

      Isn't it possible that they were actually parodying both? That's the impression I got from the comic. They were making fun of both American McGee's game style and of Strawberry Shortcake. If this is the case then there is no way American Greetings would win a lawsuit unless Penny Arcade couldn't pay to represent themselves.

    • How is it not a parody of Shortcake? (Score:5, Insightful)

      by Anonymous Coward on Monday April 28, 2003 @03:16PM (#5827481)
      The comic in question is (should I say "was") humorous precisely because it's a parody of Strawberry Shortcake.

      In the post along with the strip the PA people went out and said that they were parodying McGee. But whether they said it or not, they're also parodying Strawberry Shortcake, playing on her goody-goody image.

      The guy on PA makes a good point in his post on their site. Strawberry Shortcake is part of the American lexicon. Just like Gargamel or GI Joe or Speed Racer.

      Referencing these characters shouldn't be trademark infringement.

    • Re:Who was the target? (Score:5, Insightful)

      by Silverfish ( 33092 ) on Monday April 28, 2003 @03:24PM (#5827612)
      Explain how transforming characters from a toy line for young girls into the stuff of male adolsecent fantasy istn't parody.

      As far as I can tell, showing the characters as the exact opposite of everything they are marketed as is a pretty clearcut case of parody.

  • Mirror of the new strip (Score:5, Informative)

    by Motherfucking Shit ( 636021 ) on Monday April 28, 2003 @03:04PM (#5827264) Journal
    Today's PA comic [resourcepop.com]

  • Welcome to America... (Score:5, Insightful)

    by ZZane ( 144066 ) on Monday April 28, 2003 @03:06PM (#5827296)
    ...where things are only legal if you can afford to pay as much as the ass suing you to defend yourself in court.

  • Trouble (Score:3, Funny)

    by Henry V .009 ( 518000 ) on Monday April 28, 2003 @03:06PM (#5827302) Journal
    Of course their latest strip will get them in trouble. It's just asking for a slashdotting.

  • Can someone explain? (Score:3, Interesting)

    by DrXym ( 126579 ) on Monday April 28, 2003 @03:06PM (#5827309)
    a) What does this new cartoon have to do with American Greetings except for the caption on the desk? b) What does the original "American McGee's" cartoon have to do with them either?


    I'm not being dumb here, it is just completely unobvious to an international reader what the issue is.

    • Re:Can someone explain? (Score:5, Informative)

      by Randolpho ( 628485 ) on Monday April 28, 2003 @03:13PM (#5827422) Homepage Journal
      American Greetings currently (I think) holds the copyright for Strawberry Shortcake. If you click on one of the mirrors, you'll see Penny Arcade's take on American McGee's *next* game, in which Ms. Shortcake is quite the little sadist.

      So American Greetings is essently protecting their copyrights to Strawberry Shortcake. Groundlessly, because as the article stated, it's a work of parody. The funny thing is, it's *supposed* to be a poking fun at American McGee. I'm sure PA was prepared for any backlash from them. Getting hammered by a greeting card company probably surprised PA quite a bit.

      And, to top it off, PA is now getting hit with a slashdotting, as if PA didn't already have bandwidth problems!

  • But isnt the name trademarked? (Score:3, Informative)

    by cybercomm ( 557435 ) on Monday April 28, 2003 @03:06PM (#5827317) Homepage Journal
    Hasn't someone in the previous slashdot article mentioned that they got C&D order because the name "Strawberry Shortcake" was (TM)or(R) (forgot which one..:) And therefore the property od American G.?

    • Re:But isnt the name trademarked? (Score:5, Insightful)

      by UCRowerG ( 523510 ) <UCRowerG@NospAM.yahoo.com> on Monday April 28, 2003 @03:13PM (#5827424) Homepage Journal
      The name may be trademarked, but US copyright law (DMCA notwithstanding) permits certain "fair use" of such things, like using a company name or catch phrase in your school report or a newspaper article, or in parody artwork such as the banned comic.

      • Re:But isnt the name trademarked? (Score:4, Informative)

        by digital photo ( 635872 ) on Monday April 28, 2003 @03:29PM (#5827690) Homepage Journal

        The US Copyright Laws have NOTHING to do with US Trademarks.

        The US Copyright laws allow for the parody of content. That is fine and not in question.

        The US Trademark laws doesn't have such an allowance. Any use of the trademark not aligned with your company/entity is considered dilution of your trademark and those dilutions must be fought off(ie, defend your trademark) or you will lose your trademark.

        With Copyright laws, there is no such dilution clause.

        The reason why AM is threatening PA is because of the use of the term "Strawberry Shortcake" in their comic strip. The Parody of the concept is defended. However, the use of the trademarked name is not.

        To split it even further, just because something is Copyrighted does not mean it is Trademarked. However, in the case of AM and Strawberry Shortcake, the material is copyrighted and AM holds the trademarks on the "Strawberry Shortcake" name/phrase.

        Note that trademarks are not universal. Unless AM registered the Trademark for all goods(including use in comics), they may not be able to defend their trademark. Check out the USPTO (www.uspto.gov). A Trademark needs to be registered under particular classes of possible uses for it to be protected under that use. They probably have it covered under publication via electronic and printed means though.

        • Re:But isnt the name trademarked? (Score:5, Informative)

          by Fnkmaster ( 89084 ) on Monday April 28, 2003 @03:36PM (#5827804)
          Wrong. An analogous concept does exist [cll.com] in trademark law, it's just not as broadly protected as the equivalent parody protections for copyright law, apparently because of the greater potential for direct damage from somebody else's use of your trademark. Whether they'd win or not in Court is a question I can't answer, but it certainly doesn't really seem that any potential damage could be done from a comic strip. Unfortunately, trademark law seems to be lacking the same kinds of "bright line" standards for fair use that copyright has, and is more dependent on the feelings of the particular judge.

        • Re:But isnt the name trademarked? (Score:5, Insightful)

          by gilroy ( 155262 ) on Monday April 28, 2003 @04:26PM (#5828411) Homepage Journal
          Blockquoth the poster:

          The US Trademark laws doesn't have such an allowance.

          IANALBICUG (I am Not a Lawyer but I Can Use Google):
          "Parody is a defense to trademark infringement". (http://www.patentfla.com/articles/trademark_parod y.htm [patentfla.com], but they also say, "Engaging in trademark parody is a little like shooting at the king. You had better be good at it, because if you attempt and fail, you are in big trouble.")
          "Bright lines or not, parody does provide some protection and to some extent, depending on the circumstances, parody may permit the use of copyrighted or trademarked material." (http://www.jamesshuggins.com/h/oth1/parody.htm [jamesshuggins.com])

          So it seems to be risky but possible.
        • How can you trademark "Strawberry Shortcake"? That's as ridiculous as trademarking a word as common as "windows"....

  • What can you do? Join the CBLDF (Score:5, Informative)

    by Nova Express ( 100383 ) <lawrenceperson.gmail@com> on Monday April 28, 2003 @03:07PM (#5827329) Homepage Journal
    If you're looking for a way to fight censorship-via-lawsuit, you might want to join the Comic Book Legal Defense Fund.

  • "Clearly" a parody? Banned? (Score:3, Insightful)

    by PCM2 ( 4486 ) on Monday April 28, 2003 @03:07PM (#5827330) Homepage
    The banned strip is clearly a work of parody, which I believe is still legal in this country, unless that too changed recently.
    Well, IANAL, but frankly it's not clear to me that the drawing is a work of parody. To me, it seems like something that might infringe on somebody's trademark. If I were a big corporation, I might want to test the point in court. What's wrong with that?

    And, "banned"? How so? This is yet another case of lawyers writing a cease-and-desist, and the recipients capitulating. Nobody got "censored" here, nobody's free speech was infringed.

    • if you go to the site you'll see that the PA people didn't capitulate because they felt they were in the wrong. they gave in because they run their site on a shoe-string budget.

      If I were a big corporation

      hehe. that's a funny picture.

    • Censorship there is (Score:4, Insightful)

      by aepervius ( 535155 ) on Monday April 28, 2003 @03:52PM (#5828045)
      The censorship is : you risk to loose or have a lot of money to be "frozen" for a time, to get a lawyer to defend you. If you do not have the deep pocket of a big company then this money would be a murderous move on your budget.

      Thus you have no choice. Temporair ruin and blocking of asset (if oyu win AFAIK you get your money back) or take back your opinion/strip/whatever.

      Censorship isn't only governemental and law enforced, and you do not need a gun to force censorship on somebody. Merely inconvenience them to the extrem, put them in a difficult position, which nmight make their life a hell and most except idealist will bow. This is also censorship.

  • Opposite feeling (Score:5, Insightful)

    by SnowDog_2112 ( 23900 ) on Monday April 28, 2003 @03:08PM (#5827340) Homepage
    I actually came away with the opposite feeling. While the first strip was clearly a parody, it was a parody of American McGee, and not a parody of American Greetings. They'd probably have a strong legal leg to stand on if McGee came to them with a lawsuit.

    However, because they're using a third party's intellectual property in the context of the parody, it's a little fuzzier. Spaceballs parodying Star Wars is cool ... Spaceballs parodying Star Wars with a title character named Strawberry Shortcake might be a different story.

    The more recent strip, however, is clearly a criticism of American Greetings' policies, and seems more obviously "safe" under various free-speech umbrellas than the first one. It's not even using any of their IP.

    I also think it's funnier, but that's just me :).
    • There was a character in Spaceballs called "Pizza the Hut." Why didn't Pepsi sue?
    • "However, because they're using a third party's intellectual property in the context of the parody, it's a little fuzzier."

      On the other hand, it's a piece of intellectual property the owners haven't done anything with for, what, 15 or 20 years?

    • Re:Opposite feeling (Score:3, Interesting)

      by Xzzy ( 111297 )
      > However, because they're using a third party's
      > intellectual property in the context of the
      > parody,

      But they raise a good point in the text-based update, which the slashdot story didn't link to.

      Basically there's certain icons that are corporate brands which have, basically, become integral parts of our society today. Mickey Mouse, McDonald's, Microsoft.. I mean the list is infinite in length, an encompasses things from niche appeal to mass appeal. Almost EVERYTHING we identify with in this day

    • Re:Opposite feeling (Score:4, Funny)

      by Jackazz ( 572024 ) on Monday April 28, 2003 @03:19PM (#5827528)
      What if there was a character named Pizza the Hut? [geocities.com]

      Gabe and Tycho surely don't want Pizza to send out for them!

    • While the first strip was clearly a parody, it was a parody of American McGee, and not a parody of American Greetings

      It was clearly a mockery of the sweetness and light part of Strawberry Shortcake.

      Spaceballs parodying Star Wars is cool ...

      Spaceballs didn't just parody Star Wars. I'm sure the IMDB has a complete list, but it took a swipe at Aliens (in the diner scene), as well as Rambo and the Planet of the Apes.

      I also think it's funnier, but that's just me

      The new one seems like it's just an atta
  • Joke 'em if they cant take a fsck, fsck 'em if they cant take a joke... and above all else... dont sweat the petty stuff...Pet the sweaty stuff.
  • You gotta hand it to Penny Arcade! They have come up with, hands down, the best absolute comeback to those dirty nasty lawyer people! "Fucking nazis!" indeed.

  • Easy Boycott Idea (Score:3, Interesting)

    by Guppy06 ( 410832 ) on Monday April 28, 2003 @03:10PM (#5827381)
    Aside from the usual "don't buy anything from these people [americangreetings.com]," it seems the easiest and surest way to get the word out is to refuse any mail with AG's logo on the envelope. Just write "Refused, return to sender" along with a note on the envelope that says something to the effect of "Nothing personal, I'm just boycotting the publishers of this card."
  • Everyone seems to be posting that PA is in big trouble right now. However, unless my understanding of law is way off base, the worst thing that can happen is that they'll be forced to take this comic down too. Big whoop. It already made me laugh :)
  • Didn't the Supreme Court already test the whole idea of doing a parody? If I remember correctly, it was Justice Scalia who wrote the ruling, but I may very well be talking out of my ass (and I'll admit that).

    The most common place that the general public would've been exposed to this ruling would be in The People vs. Larry Flynt [imdb.com].

    Is there something about this case that makes the ruling used for Flynt inapplicable?

    <rant>

    IANAL (I am not a lawyer).

    Law is boring, unchallenging, and unrewardi

  • Comic Book Legal Defense Fund (Score:5, Informative)

    by Lothar+0 ( 444996 ) on Monday April 28, 2003 @03:14PM (#5827436) Homepage
    I looks like they're seeking legal aid from the Comic Book Legal Defense Fund [cbldf.org]. If the little guy can't defend himself in court against the big boys, then there should be someone else who can. They also protect Japanese and American manga artists and sellers. I joined, and so should you [cbldf.org].
  • For general information on curbing all sorts of lawsuit abuses across the country, you might want to take a look at the American Tort Reform Association [atra.org].
  • Check out [goats.com] what happened when Reese's threatened to sue Goats [goats.com] over their use of trademark [goats.com] in a similar situation.

    -R

  • Penny Arcade is, unfortunantely, not protected (Score:2, Interesting)

    by Anonymous Coward
    IANAL, but i do have some experience in these kinds of cases.

    The traditional protection of a work of parody does not, in this instance, protect Penny Arcade. The protections of parody and satire only protect the material being parodied. In this case, the subject of the parody was no Strawberry Shortcake, but rather, American McGee's Alice and Oz games. American Greeting's property was being used to parody something else. Therefore, it's not protected.

    This test has been held up in a number of cases, ma

  • Another proper response is to register sucks-sites for both the prosecuting party and their lawyers.

    Remember, Gifford-Krass-Grohsprinkle sucks. [giffordkra...esucks.com]

    These firms are and represent the scum of the earth. Why? Because they take money from their clients in cases where they know they have no legal standing. They're just bullies for hire, and quite possibly they even fool their clients into thinking they have a real complaint. Scum.

    See also MichaelSavageSucks.com also nastygramed by radio show lawyers [politechbot.com]

  • NOT clearly a parody (Score:2, Interesting)

    by Neolithic ( 70450 )
    Penny Arcade was poking fun at American McGee's treatment of other worlds (eg. Alice, Oz), not at the Strawberry Shortcake world. Strawberry Shortcake was a means to an end. It could have been replaced by Pooh or the Smurfs with the same effect. The joke, to me, was the darkening retale of percieved lighthearted, children's stories.

    In his own comment on April 21, 2003 [penny-arcade.com] Tycho provides a link to other court cases [tklaw.com] and specifically mentions "Dr. Seuss Enterprises Vs. Penguin Books" on page three as possible
  • If American McGee wanted to sue, there would still be the whole parody/fair use issue, but at least it would make sense. What the hell does AmericanGreetings have to do with it? The only commonality is the word "American", which, if I'm not mistaken, is used QUITE frequently in the United States, for a great many things. This isn't even a parody issue. This is a "what the hell does this have to do with anything" issue.

    -Restil
  • Is it just me, or do all the F's in the strip look like Ps? Or is the strip just written in some kind of esperanto-english patois?

    "We're late Por our meeting". "She's a Pucking Nazi!"

  • heh (Score:2)

    by nomadic ( 141991 )
    Penny Arcade already struck back when they replaced the original offending strip with a message about American Greetings, and the e-mail address of the person who sent the letter. I'm sure she got a sizeable amount of poorly spelled, vicious hate mail.

  • No biggie (Score:5, Insightful)

    by dacarr ( 562277 ) on Monday April 28, 2003 @03:22PM (#5827579) Homepage Journal
    First and foremost, remember that they have merely sent C&D. Next step is a lawsuit if necessary. On one hand, as I've said before [slashdot.org], anybody can sue, but whether you win is another story. Now consider this - it's a pain to go to court. Lawyer fees aside, it is a lot of time and energy put into this kind of stuff.

    My thoughts? I don't like the strip - I find it tasteless. But one of the tenets of free speech is to defend even those who you don't like - because if they censor them, it's only a matter of time before they censor you. As such, I'd hate to see these guys go down like this.

  • woah there (Score:3, Informative)

    by Joe the Lesser ( 533425 ) on Monday April 28, 2003 @03:28PM (#5827685) Homepage Journal
    That certainly wasn't work safe! *gulp* ;-)

  • Email from American Greetings (Score:5, Informative)

    by rudeboy1 ( 516023 ) on Monday April 28, 2003 @03:47PM (#5827968)
    I did my patriotic (read-rabid PA fan) duty, and wrote Miss Rinda Vas a letter, telling her what bad idea this all was and everything. I got a fairly swift response, including an "original" letter written to the PA staff. Email addresses have been removed to protect the innocent...

    Email sent Wed. 4/23--

    there is no legal action against them ... fyi ...

    -----Original Message-----
    From: RV Rinda Vas (1328)
    Sent: Wednesday, April 23, 2003 9:32 AM
    To: Subject: RE: Trademark infringement, misuse

    Thank you for your immediate attention to this matter. We note that the
    cartoon has been removed.

    I am receiving a good amount of e-mails from the penny-arcade subscribers
    asking why American Greetings asked you to pull the cartoon. Unfortunately I
    do not have the resources to respond to them individually so I am passing
    the answer on to all of you. On April 17, 2003, American Greetings received
    a complaint about the cartoon namely that it was "creepy" and "offensive."
    Thereafter, we asked you to remove it.

    Note that the target audience for Strawberry is young females (indeed young
    children). And we do receive complaints from parents and the like over
    cartoons like yours.

    So there you have it.

    -----Original Message-----
    From: Ryan
    Sent: Wednesday, April 23, 2003 3:55 PM
    To:
    Subject: Please Cease and Desist

    Dear Rinda Vas-
    I am writing to you, as I am sure are many others, to implore you to stop
    your legal action against Penny Arcade and its creators. As you may or may
    not be aware, the actions your company has taken against Penny Arcade has
    already publicized the original event much more than the comic's web site
    ever would have. Furthermore, several websites have made note of this
    issue, spreading the issue to more people, not usually associated with the
    normal Penny Arcade crowd. Feel free to read the articles posted on
    http://slashdot.org, and other such sites. At Slashdot, you will see the
    forum that follows every article. Within said forum, you will note a
    resoundingly negative response to your decision to take legal action. There
    is even a petition out to boycott your company. The last time I checked
    that site, the petition was drawing near the 10,000 mark, and climbing.
    I am not going to threaten you, or swear at you, as I am sure many others
    are doing, regarding this issue, but I have to advise you that, from all
    evidence available, what you are doing does not seem like a smart move. I
    think you might do well to look into options for reaching a quiet agreement
    with the owners of Penny Arcade. I am sure they will be happy to make this
    legal action go away with as little public notice as possible. My advice to
    you is to try to save face, as your company stands to lose a large amount of
    business and public appeal by pursuing this petty issue. Thanks for your
    time.

    Ryan

    • Re:Email from American Greetings (Score:5, Insightful)

      by JackMonkey ( 631985 ) on Monday April 28, 2003 @04:25PM (#5828403)
      So someone was offended by a PA comic and complains to American Greetings???

      Here's the problem with America: people have no sense of responsibility for themselves. If you have an issue with a PA comic, complain to PA, don't complain to American Greetings so they will fight your battle for you.

      AG should have no say over what PA posts on their site unless it legally has no right to be there. You can't hold one group accountable for another group's opinions.
    • Well then it looks like AG is taking a relatively pragmatic stance on this. I suppose that's a good thing, they don't appear to be hiding behind "virtues" or "ideals," simply that some customers were freaked out and asked for them to take action. Now as to the veracity of that claim... Seems dubious to me.

      If I see a picture of Ronald McDonald used in some nasty cartoon that my kids should never see anyways, I'm not going to complain to McDonalds about it. That's totally misguided.

      Also, RV hasn't responded

  • CAD letter? (Score:3, Insightful)

    by dextr0us ( 565556 ) <[ta.lps] [ta] [su0rtxed]> on Monday April 28, 2003 @03:56PM (#5828088) Homepage Journal
    just because someone sends a ceist and desist letter, doesnt that mean they have to take you to court? and if your work is clearly a parody, couldn't you just go to court and defend it yourself? get a media law text book, cite some sources, etc...

  • $.02, ok , let's do it! (Score:3, Interesting)

    by itzdandy ( 183397 ) on Monday April 28, 2003 @04:02PM (#5828152) Homepage
    if everybody submits their $.02, then maybee Penny-Arcade can get the legal help they need. I have submitted a "story" for just this, to set up a paypal donation fun so that those interested can give a little to help a lot. Not only do i really love these guy's comic, but I very much wish to retain free speech and fighting this crap is the only way to retain it.

  • Said it before: simple boycott (Score:4, Informative)

    by Galvatron ( 115029 ) on Monday April 28, 2003 @04:24PM (#5828390)
    I said this the first time this was posted, but for those that missed it: if this upsets you, don't buy American Greetings or Carlton Cards for Mother's day (a bit over 2 weeks away). That's it, pretty simple. Maybe it'll have an impact, maybe it won't. But it's SO easy to do, that we ought to at least make that much of an effort.

    If you don't normally buy cards anyway, well good for you, you don't need to reply to this telling me about how you're superior because of it. Maybe you'd like to buy a Hallmark card anyway, just so that AGC's market share as a percentage of money spent on greeting cards this month falls, maybe not, up to you. But for those of you who were planning on buying a card for your mother anyway, how about checking the brand on the back first?

  • Scalzi's Take (Score:3, Interesting)

    by SpyderPSU ( 582418 ) on Monday April 28, 2003 @04:28PM (#5828441)
    Freelance writer John Scalzi [scalzi.com] brings up an interesting point that I haven't read here:

    American Greeting's argument here could be that Penny Arcade's image is using the Strawberry Shortcake name to parodize American McGee's tendency to appropriate young female literary characters for his dark and bloody video games, not Strawberry Shortcake herself. Therefore, using Strawberry Shortcake for that purpose is not covered under parody. It's an interesting assertion.

    However, I wonder if this line of reasoning, if indeed it is the one American Greetings is using, is as strong as it might appear initially. This line of reasoning works only to the extent that Strawberry Shortcake herself does not fit the rubric that the Penny Arcade is parodizing, namely that Strawberry Shortcake is not a young female literary character. In fact she is, the main character in dozens of books: Strawberry Shortcake: Meet Strawberry Shortcake, Strawberry Shortcake at the Beach, Strawberry Shortcake: The Berry Big Storm, and Happy Halloween, Strawberry Shortcake are just some of the titles in her oeuvre. And in an interesting literary note, in several of these titles, Strawberry Shortcake is either planning or having a party of some sort or another, which makes her activity in the parody (planning a party with her friends) not an atypical activity for her. Although to be fair she's not typically whipping her friend Plum Pudding at those parties. But that's part of what makes it a parody.

    I don't know if this point holds any water, legally speaking, but it's interesting. You can read the rest of the article here [scalzi.com]

    -Spyder

  • Call Larry Flynt (Score:5, Interesting)

    by coyote-san ( 38515 ) on Monday April 28, 2003 @04:35PM (#5828514)
    Like many people, I have a strong love-hate relationship with Larry Flynt and <i>Hustler</i> magazine. I love his willingness to fight to protect our rights from attacks by the easily offended, even while finding much of the content of his magazines personally repugnant.

    Anyway, one quick phone call or email should end this matter real quick. How many people have seen this online strip, vs. how many people would see similar strips in that magazine? How much money is AG willing to spend to harrass a couple small-time artists, vs. how much money is it prepared to spend defending itself from a company that's successfully argued Freedom of Speech cases before the Supreme Court?

    Call me crazy, but I don't see a lot of crossover in the consumers of <i>Hustler</i> and sappy greeting cards so the magazine can fight hard and fight dirty if AG wanted to fight them. Hell, I wouldn't put it past them to launch their own lines of parody greeting cards (real greeting cards, not just jokes in the magazine). I mean, where else are you going to find the perfect Valentine card for the girl who dumped you for your best friend, or for your former boss?

  • Amer. Grtngs: P.A. Series (Score:5, Funny)

    by A_Non_Moose ( 413034 ) on Monday April 28, 2003 @05:46PM (#5829289) Homepage Journal
    You sent us a Greeting
    That said Cease and Desist
    So we give you "The Finger (TM)"
    (we couldn't resist)

    The "Red Bitch" has been mirrored
    Like DeCSS
    We just thought we'd share
    (or is it confess)
    .
    .
    .
    . /open cover to greeting card
    .
    .
    .
    .
    Fuck You
  • I can understand how American Greetings could be a little uncomfortable about imagery of Plum Pudding getting her ass smacked [mistrust.org] by Strawberri Shortcake, but they need to chill out. A while back someone took my Nmap Security Scanner [insecure.org] and created cartoonish parody that is 100 times more disgusting [counterhack.net] and offensive!

    Yet I didn't sue. I just got a chuckle at the sick mind who would create such a thing! AG should take note.

    -Fyodor
    Concerned about your network security? Try the free Nmap Security Scanner [insecure.org]. Version 3.27 was released today

  • Hang on a minute (Score:3, Insightful)

    by Lurgen ( 563428 ) on Tuesday April 29, 2003 @02:03AM (#5832031) Journal
    The guys from Penny Arcade won, regardless of what Am Greetings thinks...

    Thousands of extra eyeballs saw their strip thanks to Slashdot. Even if a tiny percentage of those viewers went to the official site, and a similarly tiny percentage spent some money, I would expect that Penny Arcades page impressions, clickthroughs (they have such amazingly discreet advertisements, other sites could learn a lot from them), and subscriptions have boomed at least a little bit.

    Worse for Am Greetings, they failed miserably at supressing the image. It's available to anybody who looks for more than a minute or two, google is returning mirrors to it now - so AG managed to burn up some more customer goodwill without achieving anything positive.

    Why bother trying to sue them to get permission to repost the picture? A victory like this can't be awarded by the courts, it takes several million slashdot readers to make such a win possible :)

    Congrats to Gabe and Tycho for a top-notch site. I'm not affiliated with it in any way, but I read it just about daily. I hope they gained a lot from this little event.

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