Slashdot Mirror
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."
Does anyone have this comic mirrored anywhere? I'm sure we'd all love to see what the fuss is about.
I thought copyright law had exemptions for satire and humour.
If it didn't, how could anyone talk about anything?
http://members.aol.com/matthewbrinegar/straw.gif I don't think AOL is going to get slashdotted any time soon. :)
American Greetings needs to get a grip. Parody is a legitimate form of Fair Use.
You see? You see? Your stupid minds! Stupid! Stupid!
They certainly don't support spelling...
-------
"In times of universal deceit, telling the truth becomes a revolutionary act."
-- George Orwell
Short, to the point, and not abusive. Hopefully they will take note. Frankly, I think they need to lighten up.
You win again, gravity!
You didn't get the memo? There is no more fair use for anything electronic any more.
Developers: We can use your help.
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.
Tequila: It's not just for breakfast anymore!
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!
It's now on Slashdot and the cartoon is being mirrored all over the place... can't ask for more publicity than that!
Sorry, but my karma just ran over your dogma.
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.
The boys have started a petition 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.
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
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.
Whence? Hence. Whither? Thither.
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.
"The question of whether a computer can think is no more interesting than that of whether a submarine can swim" -EWD
Is this technically a parody? I thought of parody as imitation, not copying, of the original. So Spaceballs or Bored of the Rings are parodies where it is obvious what the source material is but none of the characters, names or places are directly from the originals.
In this case the actual name of the character is being used in the cartoon. Now, if they'd used the same image and made up a new name I don't think AG would have a leg to stand on, but in the current form they may be within their rights.
I don't know the law on this, and maybe my understanding parody is not the same as a court would see it, but I think AG may be right.
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.
Quoth Gabe here:
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.
jello.
aka aron.
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, help@corporate.americangreetings.com 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
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
"Every security scheme that is based on secrets eventually fails." - Steve Jobs
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).
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 was linked to (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.
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.
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.
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.
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 for that day (Especially Gabe's post midway through). And the problem is that court precedent doesn't support them (link to .pdf file). The third case "Dr. Seuss Enterprises Vs. Penguin Books" is especially relevent.
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.
-MDL
Happy meals fund terrorism
You're part of the noise, genius.
why run from Vincenzo?
Here's the email I sent to American Greetings:
I am disappointed in your response to Penny Arcade's (http://www.penny-arcade.com) spoof of American McGee's Alice game by using Strawberry Shortcake characters. When I was young, Strawberry Shortcake was my favorite cartoon. I watched it on tv, had all the toys, and even had the bedroom set. Rather than overreacting when I saw Penny Arcade's use of the characters in their spoof, I saw if for the humor and the fun they were poking at American McGee, not Strawberry Shortcake. As a consumer of your products, I see no problem with that comic and would request that you stop harassing/threatening Penny Arcade. They aren't rich like your company and can't afford to defend themselves against corporate bullying. Please recognize humor for what it is, that they're not hurting you, and that you're not gaining yourselves any fans or new customers with this action. In fact, due to the issue's coverage on Slashdot (http://slashdot.org), you are more likely to LOSE customers and support. We vote with our wallets, and with a bunch of holidays coming up, do you really want us to switch to another greeting company because of a silly comic? I'm sure Hallmark will be sending you a thankyou card soon; maybe you'll get lucky and it'll be an American Greetings card.
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.
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 at American Greetings
But it should be noted that currently American Greetings is in the process of changing their executives, so it's unclear who would actually be responsible for these kinds of positions/acts.
Insider Trade Filings for American Greetings (Give you an idea of who's interested in making money off the stock)
Z.
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.
"First lesson," Jon said. "Stick them with the pointy end."
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/
particlesphere.com - quantum
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.
A pizza of radius z and thickness a has a volume of pi z z a
> 17 of them should be moded "Redundant"
Because "redundant" is a stupid moderation. Most people load the story page once and read all (maybe not ALL...) of the comments on that page without hitting reload, so by the time they respond to something halfway through, others may have posted the same thing, but you can't see it because the page you are reading is 10 minutes old. That and the fact that the same argument can be used in many different places in the comment threads.
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
Pan of child vigiourously tugging mom through toy department. [mom looks haggard.]
.. we're going to be late.'
.. thank-you.
Mom: 'Honey, just pick something out
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
--Ne auderis delere orbem rigidum meum, non erravi pernicose!
In this case, Penny Arcade used some kind of "Strawberry Shortcake" copyrighted material to create a parody of American McGee's videogame development preferences
Almost correct. No content created by American Greetings was used, so there is no copyright case here. This is either purely a trademark case, or a crock.
Going to that url now gives:
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
At least mafia-owned pizzarias make excellent pizza. Compare to Bill Gates.
Comic Book Guy: "Oh, a sarcasm detector. That's a really useful invention."
(sarcasm detector explodes from overload)
i wonder if Hallmark has a card for this?
"Sorry you're getting harassed by some dumb company's legal department."
maybe with a picture of a cute little kid being abused or something.
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.
The forums at PA makes /. looks like a collection of rocket scientists.
Really, I know what I'm doing...Ohhhh, look at the shiny buttons!
The issue with the PA strip is not satire fair use as many have pointed out. Strawberry Shortcake is not being parodied, and therefore the use of the character is illegal. But then why did the PA artists use the character at all? They're clearly not ignorant of copyright law.
I believe that Gabe and Tycho thought that Strawberry Shortcake was now in the public domain; and if copyrights had reasonable terms she would be. However, copyrights now last for at least 20 years, and more if you have enough sway in Congress (see Disney).
If American Greetings were still using the Strawberry Shortcake character (the way Disney is still using Mickey) I could see their justification for protecting their copyright. As an artist, I wouldn't want my body of work being coopted even as I was creating and promoting it, and I think the Penny Arcade guys would agree. But Strawberry Shortcake is a dead concept, to such a degree that I would bet nearly nobody even knew she was owned by American Greetings.
American Greetings has an opportunity to demonstrate good corporate citizenship, improve their public image, and set an example for other media companies by dropping their copyright on Strawberry Shortcake and any other properties they aren't using and don't plan to use again. There's no sense in wasting money and time to protect things you won't use.
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.
For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?
Penny Arcade has wisely not spoken up on the topic, but it could be considered a parody of both American McGee and Strawberry. The American McGee case is trivial. But what about Stawberry? American Greetings, believe it or not, makes greeting cards, not cartoons. American Greetings has liscenced its product to many people, for cartoons, dolls and whatnot. It could be construed to be a commentary of their remarketing of the character (which has happened recently) for a more lucrative market. I honestly don't think that Mike and Jerry intended it, but it could be there. If only they had chosen something with a more sordid history. Like Rainbow Bright, or what not.
I Browse at +4 Flamebait
Open Source Sysadmin
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.
It would also be quite lame, both creatively and in humorous terms.
A lot of people are suggesting various alterations to the image that would allow it to be reposted. To me, that's even worse than its removal. What kind of statement are you making by altering a creative piece of artwork to satisfy a bunch of copyright lawyers? Removing the images show a lot more artistic integrity - you're making a statement that basically says "your attitude will lead to no art." That's a strong statement.
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.
where there's fish, there's cats
You misunderstand, I fear. The PA strip has nothing to do with Strawberry Shortcake (on a side note, how the hell can that get to be a registered trademark?).
I have no understanding of (or belief in, sadly) the USA's laws regarding free speech or copyright. What it is important to not is that the fact that Ms. Shortcake's appearance here (however modified) means nothing in itself. The idea is that should American McGee get it into his head to do a game about SS, it would probably look a lot like that, as shown by his 'interpretations' of Alice in Wonderland and, now, The Wizard of Oz.
American Greetings shouldn't take the PA strip to be unfavourable, but in fact acknowledge the obvious homage to what Messyrs Krahulik and Holkins clearly seem to think is some sort of epitome of sacharrine children's fiction. To anyone who understands the strip, the idea that SS is incorruptibly nice and sweet is reinforced, not diminished, by the comment of the strip (said comment being that American McGee is a conceptually unoriginal hack artist, little better than generational legions of bored teenagers sitting in Maths lessons, who would see the same depravities regardless of the subject matter he chose to defile).
American Greetings should see this as a kind of Blessing: Penny Arcade puts Strawberry Shortcake (which, frankly, no-one's heard of outside the US) right up there with Alice in Wonderland and The Wizard of Oz (both of which are widely known and highly popular outside the states)!
My main point is this. The way I see it, it would be just as funny (much more to non-americans) to use, say, Snow White (though Rammstein got there first) or Little Red Riding Hood (bestiality, hmm?). The equivalent in the UK would be to fuck with these early reading books which had characters such as "Roger Red Hat", "Billy Blue Hat", and "John and Jennifer Yellow Hat". They did nothing much more advanced than walk around saying hi to each other, but it would be soooo easy to make a schoolbook porno version.
Its a mystery why PA chose Strawberry Shortcake, when there are a heck of a lot more recognisable "wholesome" kids characters out there. Thats basically the joke. American McGee has no original talent above making wholesome kid's characters abuse themselves. My solution to this whole debacle? Just do another strip, just without this relatively obscure Strawberry Shortcake person, and with some nursery rhyme played out in bondage gear. Its the same strip, but American Greetings don't get the credit.
I would be sending this to them via email, but right now there's no point because I don't believe they are even going to check the inbox. She's probably already got a new inbox set up (unless the IT dudes are still trying to recover the server). Whatever happens, she won't see my message amongst the million others in there.
True, but we're talking about Parody, which is an entirely different situation than Trade.
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.
"Everything you know is wrong. (And stupid.)"
Moderation Totals: Wrong=2, Stupid=3, Total=5.
The Coca-Cola Company brings this action to enjoin defendant from printing, distributing and selling commercially a poster which consists of an exact blown-up reproduction of plaintiff's familiar "Coca-Cola" trademark and distinctive format except for the substitution of the script letters "ine" for "-Cola", so that the poster reads "Enjoy Cocaine." Jurisdiction is based on 28 U.S.C. 1338 and 1332.
That was their mistake. I would have modified the trademark "WAVE" myself. Perhaps reversed it or made it two intersecting lines. Oddly enough, the Coca-Cola "WAVE" is a registered trademark, just like the Nike "SWOOSH".
Parody is not against the law, and in fact has been successfully protected by free speech rights. Trademark infringement will still get you in trouble.
Parodies can RESEMBLE their targets, but they should also be distinctive enough that they do not exactly copy the "victim".
"Everything you know is wrong. (And stupid.)"
Moderation Totals: Wrong=2, Stupid=3, Total=5.