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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?
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.
Quoth Gabe here:
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.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
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.
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)
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.
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.
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.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
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!