Penny Arcade vs. American Greetings

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."

How about it...

Does anyone have this comic mirrored anywhere? I'm sure we'd all love to see what the fuss is about.

Re:How about it...

Yes, I have a copy of it.

I found a copy with Google too: http://www.spymac.com/gallery/showphoto.php?photo= 25644&papass=&sort=1&thecat=532 [spymac.com]

Click the image to enlarge it.

Re:How about it...

http://members.aol.com/matthewbrinegar/straw.gif [aol.com]

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.

Isn't it protected?

I thought copyright law had exemptions for satire and humour.

If it didn't, how could anyone talk about anything?

obligatory simpsons quote

Prof. Frink: "The sarcasm detector is way off the chart!"

Comic Book Guy: "Oh, a sarcasm detector. That's a really useful invention."

(sarcasm detector explodes from overload)

Re:Isn't it protected?

Parody of trademarks as well as copyrighted material is normally protected, but there are cases where it is not. This article [usip.com] describes threee cases where the pardy was found unprotected. The most relevant of the three is Mutual of Omaha Insurance Co. v. Novak, 231 U.S.P.Q. 963 (D. Neb. 1986). Now 1986 came long before a load of the IP-silliness.

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.

Re:Isn't it protected?

You know, the images displayed don't look all that much like the "real" Strawberry Shortcake. If you take that away, the only thing left are trademarks. "Strawberry Shortcake", and probably the two others. Maybe if they did a "censored" version with black squares over the trademarks and (of course) the explanation of the whole stupid situation?

Of course if PA wants to do a real parody, they need to do one about "American McGreetings"! Parody the strip, changing the one on top into a lawyer, and (heh heh) the one on bottom into Gabe and/or Tycho!

Weird Al Yankovic Interview

I really wish I understood the legal limits of parody and satire. It is often cited that copyright law allows it. At the same time, I once heard an interview with Weird Al Yankovic. He was talking about his parodies of pop songs. He mentioned that he always got permission from the copyright owners before he published one. He almost always got it, but he did ask. This would suggest that there are some potential legal hassles if you're not careful.

Re:Weird Al Yankovic Interview

Had he instead written a new melody to go along with his altered lyrics, I think he might not have needed to ask permission.

Had he done the above, I believe he would have written an entirely original song, and there would obviously be no need to get permission.

Re:Isn't it protected?

Take a look at this legal exchange between the guys who came up with Ulysses for Dummies and IDG Books, the publishers of the "...for Dummies" series. It can be found at http://www.bway.net/~hunger/litigation.html -- the Penny Arcade folks could take some pointers on how to tell American Greetings to take a flying leap.

Hope the lawsuit gets thrown out, if there is one

American Greetings needs to get a grip. Parody is a legitimate form of Fair Use.

Didn't you get the memo?

You didn't get the memo? There is no more fair [riaa.org] use [mpaa.org] for anything electronic any more.

Re:Hope the lawsuit gets thrown out, if there is o

Sucks to be them

What was the purpose of getting the image pulled - to stop people seeing a ripoff of their product/image/whatever

Now the story's on 2 places online, has the attention of the slashdot crowd, and shall be mirrored in dozens of places it never would have gotten to.

Thanks guys - I wouldn't have seen it if you hadn't wanted it pulled!

Re:Hope the lawsuit gets thrown out, if there is o

It is technically a parody, but it is not protected under fair use. (Whether you use the same names as the original, or twist them into funny-but-recognizable versions like "Frodo->Frito" and "Biblo->Dildo" doesn't matter)

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:Hope the lawsuit gets thrown out, if there is o

I understand your legal point, but surely PA's drawing IS a parody of American Greeting's original character?

It clearly picks out the absurdity of the original's cuteness and lack of sex-appeal and the fact that the character never grows up or misbehaves, and parodies these points by giving her curves, age and a bad attitude.

If the references to Mr McGee were removed, the comic would still function as a humorous visual parody of the work American Greetings is claiming it infringes.

I suggest PA put the picture back up, but change the words to read "What if Strawberry Shortcake was as nasty as American Greeting's Lawyers?"

This would clearly be a parody of the material in question.

Re:Hope the lawsuit gets thrown out, if there is o

What American Greetings needs is to get no more sales of their crappy games ever again

Uhmm.. American McGee sells games. American Greetings sells greeting cards.

Reminiscent of the Barbie Girl fuss

This reminds me of the fuss a couple of years ago about Aqua's entertaining pop ditty "Barbie Girl", which quite effectively parodied the apparent lifestyle of the doll (if you haven't heard it, you really don't want to, trust me).

Mattel tried every trick in the book to get the song either wiped or get a share of the cash, but to no avail.

I suspect Penny Arcade were just not wanting the inevitable lawsuit (why does *everything* have to end up in a lawsuit these days? rhetorical...), but it seems as though the parody defence is still just about alive in law.

Re:Reminiscent of the Barbie Girl fuss

It's a different animal entirely.

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:Reminiscent of the Barbie Girl fuss

IIRC, the 9th Circuit ruling on that case concluded by saying ''The defendants are advised to chill''. Followed by the lyrics of ''Barbie Girl'', just for reference. Nice to know some judges have a sense of humor.

My email to the company

You know, you really should stop and take stock: how much harm was that parody *really* doing you? How much harm has this heavy-handed action *really* done you? Is this really how you want to be percevied by potential customers?

Short, to the point, and not abusive. Hopefully they will take note. Frankly, I think they need to lighten up.

Re:My email to the company

percevied by potential customers

Yes, I'm sure every 6 year old child dragging her mom thru Toys'R'us will now be saying, "Don't buy me THAT mommy - her manufacturer supresses free speech by threatening to persecute adult parodies of it on the web!"

Gee, I never would have paid it no mind, but now I have to d/l a copy, burn it on several CD's and put it by my copy of deCSS, cellphone enabled scanner and drug paraphernalia.

But man would that make a good commercial :

Pan of child vigiourously tugging mom through toy department. [mom looks haggard.]

Mom: 'Honey, just pick something out .. we're going to be late.'

Child: 'It has to be just right mommy, It susie's birthday, its important.' [earnest child psudo-whine voice.]

Mom: 'How about this one?' Picking up Strawberry Shortcake Doll

Child: (looking stern) 'Now mommy, we can't buy HER , her manufacturer supresses free speech by threatening to persecute adult parodies of it on the web!'

[Jerking record sound, freeze frame on the kid looking reproachful.]

Announcer: Are your children more concerned with their civil rigths than you are ? Make a difference, donate to the EFF. We're looking out for you.

*bows* thank-you .. thank-you.

Re:My email to the company

Up until this morning, the only use of the words "strawberry shortcake" in the Penny Arcade cartoon or the associated news article were in the GIF and therefore un-indexable by Google. After this morning, it's all over the web like white on rice, and so are image mirrors. I can see what you're trying to say but you have to admit, from a practical viewpoint, this has not been a successful tactic.

Fair Use

I am so god damned tired of companies doing this. Fair use allows parody as long as the use does not cause confusion in the market place, ie: as long as it is obvious that it is parody and not the same 'product'. We have been in and out on similar but different fair use of a trademark ourselves, and finally got the company to see the light.

As much as I hate lawyers (and who doesn't?) it appears we need a new case or two at the highest level to reaffirm our rights to fair use in parody.

Re:Fair Use

it appears we need a new case or two at the highest level to reaffirm our rights to fair use in parody.

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.

Re:Fair Use

All AGC have done in getting Gabe and Tycho to pull the pic is cause it to be distributed far and wide across the net as fast as it's little meme legs will carry it.

Now *that's* justice :)

Re:Fair Use

Fair use allows parody as long as the use does not cause confusion in the market place

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])

That'll teach 'em a lesson

It's quite ironic that a company threatens to sue in order to have a fairly innocent piece of satire taken down, and by doing they draw more attention to it than if they'd just left things alone.

It's now on Slashdot and the cartoon is being mirrored all over the place... can't ask for more publicity than that!

I'm so upset I'm going to go drink Pepsi(tm)

Well, I've been reading the forum(Powered by Vbulletin(TM), and I'm so upset I got dizzy. I couldn't feel better at all until I had a cool, refreshing drink of Pepsi(TM) and had a seat in my La-Z-Boy(TM) adjustable recliner. Remember, we belong to corporations. They own words in our language now, and there's nothing you can do about it unless you want to fly on a Boeing(TM) jetliner out of the country.

There's a boycott

The boys have started a petition [petitiononline.com] stating that the signers will boycott American Greetings until the comic is allowed to be shown.

Let's show 'em what happens when slashdot readers get wind of something like this.

Re:There's a boycott

Or you can tell them directly at their contact form [americangreetings.com].

It's not a parody of Strawberry Whatshername...

It's a parody of American McGee (or maybe of the flood of crap pseudo-gothic grotesquerie of which he forms but a small part). It just happens to refer to Strawberry Thingy.

Sorry, I'm so pedantic I just had to point that out, because some people seem to have the impression that it's a really childish parody of Strawberry Doodad. Whereas in fact it's an okay (but not hilarious) parody of American 'Alice' McGee and his belief that giving anything at all a big fanged grin and some pseudo-bondage chic will make it entertaining.

This is of course a false belief, similar to the belief (popular in Asia and, I'm told, elsewhere) that giving something cat ears, a cat tail, and enormous big eyes makes it automatically entertaining.

Re:It's not a parody of Strawberry Whatshername...

...giving anything at all a big fanged grin and some pseudo-bondage chic will make it entertaining.

Works over here.

This is of course a false belief, similar to the belief (popular in Asia and, I'm told, elsewhere) that giving something cat ears, a cat tail, and enormous big eyes makes it automatically entertaining.

Cats are so hot.

Easy boycott

With Mother's Day just around the corner (May 11th), this is an easy boycott to participate in. Make sure not to buy cards from American or Carlton. By the time the next holiday rolls around, the situation will probably be resolved.

Between Penny-Arcade and Slashdot readers, there are probably enough people to make a difference in their Mother's Day card sales, and unlike boycotting the entire movie industry, this is a really easy one to do. Also, unlike with an MPAA member boycott, they won't simply be able to attribute declining sales to increasing piracy.

So buy Hallmark, tell your friends to do likewise, and let the American Greetings Company know you're doing it. Maybe we can start to teach companies that in the information age, sending out indiscriminate C&D letters in the hopes of intimidation will cause more harm than good to their brand names.

Not the target

And the sad thing is: American Greetings were not even the target of the parody. That honor goes to American (coincidence?) McGee. Looks to me like they didn't even bother to read the site.

They need to talk to Brad Templeton

When Mastercard sent him a nastygram [netfunny.com] over a sick parody on Netfunny of their "...for everything else, there's Mastercard" ads, he sent them back a response -- in the form of a Mastercard ad parody:

Web site hosting for anybody: $10/month and up

Threatening letters to people who satirize you, hoping they won't know the law: $500

Reputation as giant corporation required to intimidate small publishers: $billions

Supreme court decisions protecting parody and satire from accusations of copyright and trademark infringement... Priceless

There are some rights money can't buy. For everything else, there's Mastercard's lawyers.

Of course, it didn't help Mastercard that the target of their attempted intimidation is the chairman of the EFF [eff.org].

Petition to sign

"An industrious reader already has a petition up and ready for you to sign. If you would like to voice your support you can find the

petition here. [petitiononline.com]

I know it has some spelling mistakes but hey, I didn't write it. The kid who did is trying to get it fixed. I guess you can't just change the text of a petition after a couple thousand people have signed it."

From Gabe of Penny Arcade, there were 3509 signatures when I posted this.

american greetings slashdotted

It appears that the contact us section of american greetings has been slashdotted.

500 Internal Server Error The server encountered an internal error or misconfiguration and was unable to complete your request. Please contact the server administrator, [e-mail] and inform them of the time the error occurred, and anything you might have done that may have caused the error. More information about this error may be available in the server error log.

Here's what I was attempting to send, feel free to use mine at your convenience.

Regarding the spoof of strawberry shortcake at penny-arcade.com [penny-arcade.com]
I think that your company is over zealous with its requirement to remove the parody comic from it's web site. You should be aware however your action been posted at several online news forums about your meager attempt at censorship. A pardoy is just that and it in by no means hurts the trade marks, nor does it cause confusion with the original work. I have also written a letter to the creator of the parody urging him to stand up your legal department and challenge your stupidity in court. If he chooses to do so I will gladly donate to his legal efforts.
Furthermore, I will urge my family, friends and co-workers never to buy any product from american greetings ever again, unless this sillyness by your company comes to an end.
Yours Truly
bla bla bla

not parody

It's funny - glad i was able to grab a copy of it to amuse myself.
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....

The big hole in the "parody/satire" defense is the fact that Strawberry Shortcake (A children's book character if you didn't know) isn't their target. It more targets American McGee. Just take a look at their news [penny-arcade.com] for that day (Especially Gabe's post midway through). And the problem is that court precedent doesn't support them [tklaw.com] (link to .pdf file). The third case "Dr. Seuss Enterprises Vs. Penguin Books" is especially relevent.

Dispepsi

Just remember, kids:

It's only a parody if it only promotes the brand. Never EVER harm the brand. You can speak out against your corporate masters as long as it projects their product in a positive light. :)

Talk to the money.

As usual, the lawyers are not at responsible here. They are the lap dogs of the corporation. Let's talk to the people who are going to be most affected and who are most responsible.

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.

legal action against a web comic?

Come on, does American Greetings, Corp. really think attacking a legitimate parody really furthers its business goals as a company? Did the person(s) initiating this action have no knowledge of how an Internet based community would respond to such an assault on civil liberties? Did this action really protect and further your "Strawberry Shortcake" brand or simply generate much deserved hype around a web comic?

I would like to see you do the right thing as a company... retract your legal threats and allow Penny Arcade to repost that comic. Imagine the goodwill (and sales) you will generate from the Internet community.

Besides, I easily found the "forbidden" comic on an alternate web site (see attachment). Now this single panel will be seen by many, many more people simply because of your action. One second thought, thanks for all the free publicity for the web comic community! Keep up the great work!

By the way, I have a web comic (http://particlesphere.com/) whose main character is a redheaded female... sorta looks like Strawberry Whoever if you squint! Please threaten me with legal action... I really need the publicity!

Thank you,
Will Jayroe
http://particlesphere.com/

Slashdoted...

Looks like we killed the site hosting the comic! I just put a copy up on my server, so I guess we'll see how long it lasts.

Win2k box vs. Slashdot, Round 1:
Strawberry Shortcake Parody [wereallmadhere.com]

Parody or not?

We've got a big conflict on here as to whether this particular piece of "art" is indeed a parody or not. My question is, can an individual piece of art only "parody" one thing, or can it parody multiple sources?

In this case, yes, it seems to parody American McGee, but it seems to parody the "cutesy oh so good" Strawberry Shortcake, poking fun at a seamier dark side of the annoyingly sweet character. Does the fact that AM is mentioned disallow also parodying Strawberry, I've never heard anything against dual-parody.

Or maybe it's that the two items being parodied are fairly unrelated, but I still don't see why dual-parody would be disallowed - could an arguement as the word-simularity between "American Greetings" and "American McGee" (if AM had done cards for AG, Mad Magazine often did shorts like this)

I do see the point made by American Greetings as to their trademark though - if they'd sent a nicer letter this probably would have gone better for them. I think a lot of the problem comes not from the use of the copyright bat, but just in legalese scare tactics when a simply "please, we'd appreciate it if you didn't do that" might work better - or at least as a start.

You know at the very least...

The forums at PA makes /. looks like a collection of rocket scientists.

The Ironic Distribution Effect

This image (at least in my case) has now become subject to the "ironic distribution effect". What I mean is, I never would have seen this image, and if I had seen it I never would have saved it on my drive--except that they tried to ban it. Now, I've downloaded it into a folder on my desktop. Periodicly I round up all the junk on my desktop into a folder, name the folder by date, and copy it over to my other drive. Ultimately, these folders get burned onto a CD forming a kind of personal diary of what was on my desktop. Thanks to American Greeting's attempt to suppress this image, it's now being immortalized on my archive CDs. Now that's ironic.

Re:I'm pro funny too...

grade school blackboard drawing of humping stick figures labeled "principal" and "teacher". Anybody who finds that "funny" needs to see a lawyer themselves

HAHAHAHAHAHAHAHA... oh wait

Re:I'm pro funny too...

You've completely missed the point. The entire point of the strip was how 'easy' and immature that form of humour is!

Quoth Gabe here [penny-arcade.com]:

Making something gross or sexual or both is probably the easiest thing in the world to do. Just look at the margins of any 7th graders homework. You will find plenty of doodles on par with anything McGee has produced. American has said that his new game OZ will stay fairly true to the books but it will be "darker". It's sad that is the best he can come up with. American has the opportunity to take these well known and loved stories and re-imagine them for the world of video games, a medium with unlimited possibilities. When he made Alice I gave him credit for taking the story in a new direction even if it wasn't a terribly interesting one. Now with OZ he's doing the same thing and it shows that Alice was not some creative masterpiece. This guy is just a pervert and this is all he knows how to do. It's like he has some kind of huge fucking machine. Beloved stories and characters go in one side and junior high quality goth crap comes out the other.Yeah, Yeah McGee, we all know you are very angry. You should save yourself some fucking time and just wear a T-shirt that says "I am dark and brooding".

Re:YRO?

How exactly is this an "Oh no our rights are being trampled!" case? It's simply PA being charged under the Slander and Libel law. I wish the editors wouldn't cheapen the usually sound and just YRO section with stories of common criminals getting what's coming to them.


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.

Ehm...

The jackass who runs PennyArcade is a complete moron, and the little comic strips they do look like utter SHIT. My fucking 9 year-old cousin can do better. It would be no great loss if the whole worthless fucking site went under.

Sure, but he plays videogames and draws cartoons for a living, while you whine about him doing it on slashdot.
Seems one of you is a luser...
I'll let you figure out wich one.