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Penny Arcade vs. American Greetings Revisited
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.
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.
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This sig is worse than my last.
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.
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It's not funny. Violates the cardinal principle of comics.
Shutting down free speech with violence isn't fighting fascism. It IS fascism!
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.
... Spaceballs parodying Star Wars with a title character named Strawberry Shortcake might be a different story.
:).
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
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
Not representing or approved by my company or anybody else.
Is it totally unacceptable to parody *several* things simultaneously? That seems a bit short sighted, no?
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The most common place that the general public would've been exposed to this ruling would be in The People vs. Larry Flynt.
Is there something about this case that makes the ruling used for Flynt inapplicable?
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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.
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.
This sig no verb.
I do believe that if my mother sent me a greeting card, and I REFUSED, RETURN TO SENDER'd it, I would get my ass kicked.
What a lame ass thing to take a stand on.
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.
Are you offering to foot their legal bills?
Didn't think so. The image has been archived and mirrored, and nothing AG's laywers can do will be able to stop people from finding the image, even if it's not at the PA site.
Gabe and Tycho might win a legal battle after spending lots of time and money they don't really have or want to spend, but that seems like a Pyrrhic victory to me, and to them, I think. Tycho said as much in the latest post.
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I agree. What's a shame is that lawyers get away with these sorts of empty threats all the time. We can't really expect guys like Gabe and Tycho to know when a lawyer is bluffing. It's almost like fraud, in a way, for legal departments to act as if something like this is actionable, when they know it is not.
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.
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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...
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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.
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It seems the basic concept of a boycott is lost on people. Folks, the idea here is to deprive the company of revenue. Your Mom already bought the card, it will not hurt the company one bit to send a card back that she sent you. That is as stupid as purchasing French wine and dumping it on the sidewalk in protest of the French. They already sold the wine could care less if you drink it.
If your goal is to educate your Mom (or whoever else sends you cards) about AG, perhaps you can find a less offensive and heartless method of getting your message out.
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Even if that were not true, I find simplistic and offensive the equating of anything that people think is violating their rights as "Naziism". American Greetings, whether or not their suit is moral, are nowhere near Nazis. It's a lazy shortcut that relies on a certain perception of what a Nazi is that ends up watering down the whole concept. I don't think the Holocaust should be watered down.
bad sig...no donut.
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.
Attitudes like yours are exactly why rights get trampled. People who can't be bothered, don't want to raise fuss, don't want to become targets for the authorities, etc...
Penny Arcade did nothing to violate the copyrights or tradmark rights of American Greetings - like mentioned earlier, parody is permitted, and the strip was clearly a parody. Imagine if Mad Magazine had rolled over the first time they were threatened with legal action, or if SNL stopped their knock-off commercials because of a couple complaints from lawyers. Today they target Penny Arcade, tomorrow they're after Craig Kilbourne... once it starts, where does it stop? Comedic impersonators dropping their trade because they're threatened with libel suits? Florida exiling Dave Barry for defamation of state character?
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 to your well-put point about the whole thing backfiring on them. I feel secure in speculating that there are more people pissed off at them NOW, than were pissed off about the Strawberry Shortcake cartoon in the first place.
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Email them here: http://www.americangreetings.com/customer/emailus. pd c tus/index.html
:)
Email american greetings parent company here:http://corporate.americangreetings.com/conta
Or snail mail them here:
American Greetings Corp.
One American Road
Cleveland, Ohio 44144
Here's a form letter
Fuck you, you nazi bastards. Yes, you're nazis. Haven't you ever heard of parody? It's a LEGALLY protected form of speech, one of the few remaining. But I'm sure you corporate nazi whores will take care of that.
I really cannot see this parody of S.S. I'm not suggesting that they choose from an increasingly dwindling public domain, but rather actually parody the two of them. If you want to assult mcgee and 80s corporations, do so, and make it unambiguous. Say something like "from the people who've whored out your childhood memories for twenty dollars and american mcgee" or otherwise indicate that you have some sort of critical point to make. Not only have you doubled your satirical milage, but you've covered your satirical ass.
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" I'm really having a hard time seeing how this "comic" can generate so much interest on slashdot. "
Are you serious? Slashdot is a haven for angry fanboys who hate corporations, Microsoft and George Bush, but love 12 year old crap like Anime and comic related games and merchandise. You haven't noticed that 90% of the people who post here are complete whackjobs who lost touch with reality sometime during the 80s?
Say something like "from the people who've whored out your childhood memories for twenty dollars and american mcgee" or otherwise indicate that you have some sort of critical point to make.
I don't like that, simply because it mandates form in order to qualify for protection as a parody. Why does it have to be like a bad political cartoon where everything is explicitly labeled just so that any retard can see that you're trying to make a statement? I can see the exact remark you are suggesting be plastered on the image in the image itself. Is it not satire if it isn't obvious?
I suppose in the future we'll all be required to put "This is a work of parody of Strawberry Shortcake (tm American Bumcrammers, all rights reserved) and American McGee's Alice (tm American McGee, all rights reserved) and of Gaming Culture in General (tm Electronic Arts, all rights reserved)" in minimum size 14 font just to avoid being insta-sued by legal webcrawlers.
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Sure, piss them off. They'll take your point of view REAL seriously then.
Political cartoons are commercial, and there are many commercial satire companies.
Whether or not someone makes money has absolutely nothing to do with whether something can be used under the parody exemption.
May we never see th
parody - A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.
You'll notice that the definition itself doesn't specify any particular target or purpose other than comic effect and ridicule.
PA did imitate the style of the Strawberry Shortcake characters, as well as the style of American McGee's fairytale-turned-horror games.
They were specifically making fun of American McGee for rehashing Alice with another fairytale, and the parody included the Strawberry Shortcake characters for comedic effect.
Their maligned comic is a parody, by definition.
He also has a color version of the comic up on his site.
Mmmm.... Cherry Cheesecake...
This is a very interesting point. American McGee might have stupid ideas according to some, but he darkens tales that are in PUBLIC DOMAIN.
I think this is a perfect example of you how Disney's lobbying for de facto indefinite copyrights has destroyed what copyright was supposed to be about in the first place.
Baum had the opportunity to profit off of his Oz works back in the early 1900s. His books were popular, and now the stories have fallen into a place where they have literally become a staple fairy tale, As far as I know the original stories and concepts themselves are now PUBLIC DOMAIN, where they SHOULD BE.
But now things that should enter public domain will never be, thanks to Disney. Whenever Mickey is in danger of becoming public domain (like he should be right now), Disney will pay off some congressmen to extend the copyright laws again.
If this continues, 100 years from now people we will have no NEW stories like Oz or Alice in Wonderland that they can work with freely. Everything will still be copyrighted because the copyrights will now continue to be extended. Every story people grew up with will be still be owned by Disney or another faceless media corporation.
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I know it's a little late now that there are like 400 comments but how can American Greetings trademark something that's already part of the language? I'm pretty sure people were calling that delicious dessert "strawberry shortcake" way before AG invented that stupid character.
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.